Policy News Journal - 2011-2012

making it crystal clear (in the reference and subsequent phone call) that the allegations had not been investigated. The Court of Appeal held that accuracy and truth go to the facts which form the basis of the reference, but fairness goes to the overall balance of the reference and any opinion contained within it. It did not see how Liverpool could have honestly answered the questions posed by the reference without identifying the concerns that had been raised since J's employment had terminated. Employers quite often find themselves in a situation where an employee leaves before allegations are investigated, perhaps because they choose to leave rather than face a disciplinary investigation. The Court of Appeal's guidance in this case is helpful for employers who subsequently receive a reference request. They should refer to unproven allegations but must make it clear that the allegations were never investigated and are therefore unsubstantiated. 7 October 2011 Is it direct discrimination for an employer to refuse to spend on reasonable adjustments a sum similar to what it would spend on financial assistance for an employee with children? Does an employer in these circumstances fail in a duty to make reasonable adjustments? No, and not necessarily, according to the EAT (Underhill P presiding) in Cordell v FCO . Daniel Barnett’s Employment Law Bulletin reports: Ms Cordell was an FCO employee who, being profoundly deaf, required the support of lipspeakers. A posting to Astana was withdrawn in light of a report estimating the cost of that support at over £300,000 p/a. Ms Cordell relied on the FCO's willingness to pay school fees up to £25,000 per child p/a, and complained of direct discrimination and a failure to make reasonable adjustments. She failed at first instance and on appeal. The EAT held that there was no direct discrimination: the job was withdrawn because of cost, not because of Ms Cordell's disability. The tribunal's consideration of the cost of lipspeakers in the context of the FCO's total budget for reasonable adjustments and the total cost of embassy staff was legitimate, and what the FCO was prepared to spend on school fees was relevant but not determinative. 17 October 2011 When is an agreed variation of the employment contract following a TUPE transfer effective? When the transfer is not the sole or principal reason for the variation, says the EAT in Smith v Trustees of Brooklands College . Daniel Barnett’s Employment Law Bulletin reports: The employees, who were teaching assistants, were employed by Spelthorne College. They enjoyed unusual employment terms. They were paid as full time employees when they only worked part time. In August 2007 the college was transferred, under TUPE, to Brooklands. Afterwards, Brooklands realised the claimants were on terms out of step with the rest of the sector. It sought to bring the contracts into line. Reluctantly, the employees agreed a detrimental adjustment to achieve this, effective from 1 January 2010. Subsequently, the employees claimed the variation in pay was ineffective, since Reg 4(4) of TUPE makes a purported variation of an employment contract void if the sole or principal reason is the DISABILITY DISCRIMINATION: REASONABLE ADJUSTMENTS TUPE AND VARIATION OF CONTRACT

CIPP Policy News Journal

09/10/2012, Page 51 of 234

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