Extending Sick Pay Not A Reasonable Adjustment

The case of Ashton v Royal Bank of Scotland (RBS) has confirmed that the obligation to make reasonable adjustments to those with a disability does not extend to increasing the amount of sick pay an employee gets.

Ms Ashton had frequent absences caused by her disability, and RBS made several adjustments to her working pattern and role allowing her employment to continue. However, RBS did enforce its absence policy by giving Ms Ashton a formal disciplinary warning once her absences reached a certain level, which consequently affected her sick pay.

Ms Ashton claimed that by issuing the formal warning and withholding her sick pay, RBS had failed to make reasonable adjustments. However, the Employment Appeal Tribunal found that she was not at a substantial disadvantage in comparison to those who were not disabled because all employees were treated consistently in accordance with the absence policy, and confirmed that extra sick pay would only need to be paid in exceptional circumstances. In RBS’s favour was fact that the policy was sometimes relaxed for those with disabilities.

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Focus on ...Compensation

Recent tribunal statistics demonstrate the shocking amounts of compensation awarded in discrimination claims. The statistics reveal a 56% increase in accepted claims, obviously a cause for concern for businesses. Interestingly, compensation awards for Disability Discrimination claims are highest, resulting in an average award of £52,087!

Empire HR has drawn up a list of average compensation awards for each type of discrimination:

TYPE OF DISCRIMINATION	AVERAGE AWARD	BIGGEST AWARD
Disability	£52,087	£729,347
Sexual Orientation	£20,384	£163,725
Sex Discrimination	£19,449	£422,366
Race Discrimination	£18,584	£374,922
Age Discrimination	£10,931	£48,710
Religious Discrimination	£4,886	£9,500

When considering these figures it's important to bear in mind that a very high percentage of claims are actually settled before it gets to the tribunal stage. The figures also fail to take into account the legal fees incurred by businesses in defending the claims.

Britain's Got Talent tribunal

A contestant on the show has failed in her attempt to place a claim at a tribunal. The contestant alleged that she was discriminated on the grounds of her disability, leading to Simon Cowell criticising her performance and a decision not to put her through to the next round. Her claim was rejected on the grounds that Simon Cowell was not (and never would have been) her employer.

Empire HR’s advice for businesses – do not follow Abercrombie & Fitch’s example!

Famous retailer Abercrombie & Fitch has sparked outrage in Aberdeen, after placing a controversial job advert outside its store.

The latest job advert stating “We are looking for cool and good looking people to represent our brands” has caused outrage and upset in the North East. 

The posting of the advert in Aberdeen’s Union Square has led to a local MSP calling for the advert to be removed, and has shocked the local community.

A spokesman for the Company has been quick to point out that the advert is not illegal, and does not breach any employment laws.

Empire HR recently highlighted that Abercrombie & Fitch was forced to defend a claim of Disability Discrimination last year, after an employee who had a prosthetic limb was kept off the shop floor as a result of the Companies 42 page ‘Look Policy’. 

However, the Company has rigorously defended its ‘Look Policy’, pointing out that they also have anti discrimination and harassment policies, as well as a diverse workforce.

Empire HR, a leading employment law and HR company has been quick to warn their clients against following the example of Abercrombie & Fitch. 

Steve Cook, CEO of Empire HR explains that “whilst the job advert is not actually illegal, it could lead to problems if a job applicant can prove that they didn’t get the job due to discrimination.  Of course, there is no legislation specifically preventing discrimination on the grounds of looks, but there is a risk that it could lead to a claim on the grounds of disability, age, or even sex discrimination”.

Mr Cook goes on to point out that “the danger is that a rejected older job applicant could claim that ‘cool’ infers ‘young’ and that they were turned down because they were too old.  Or a rejected disabled applicant may claim that ‘good looking’ means ‘physically perfect’ and that they didn’t get the job because they are disabled.”

This job advert does raise interesting points – the store clearly thrives on presenting an image of ‘coolness’ and their website features impossibly good looking men and women.  Those approached for job interviews in the recently opened Union Square centre have confirmed that good looking people were singled out, and they were not asked any questions relating to retail experience and skills.

So is it reasonable for a clothing retailer to simply recruit those who most closely reflect the image they want to present?  Businesses often spend large sums of money building up a brand and image, which are designed to target the type of customers they want to attract.  The shop assistants in a clothing shop will obviously be part of this image, so is it understandable that they should look a certain way?

However, perhaps Abercrombie has taken this a step too far?  Does the Company really need to have ‘model like’ shop assistants to sell its products?  Do we want to live in a society whereby the best looking people get the best jobs, and those of us with are not quite to perfect are left to take the not so good jobs?

 

Or should businesses be left to decide who they recruit?  Has employment law gone too far in protecting job applicants? 

What do you think?  Let us know by posting your comments below.


Other links to previous law suits against Abercrombie and Fitch include 2005 case and the widely reported case in the UK about Riam Dean's prosthetic arm