Are the grounds for dismissal the rationale or the reason? (UK)

Exploring the difference between why you do something and why it happens sounds like one of those abstract A-level Philosophy questions about whether you are a prince dreaming you are a butterfly or the other way around, but without the ability to ask whether anyone cares anyway. However, the question is also key to determining a number of possible Employment Tribunal claims around retaliation, in particular for whistleblowing or trade union activity.

Continue Reading

High temperatures expected in Belgium this winter – social elections are approaching

Although we still don’t have a new federal government in Belgium (elections were on 26 May but who’s counting …), we are already heading towards the next vote. Social elections, that is, to appoint the employee representatives in the Health & Safety Committee and Works Council.

Continue Reading

Private investigations video doesn’t leave employer in dire straits (EU)

In January 2018 we wrote about Ribalda –v- Spain, a European Court of Human Rights case in which a number of supermarket employees were awarded compensation for breach of their privacy rights. They had been stealing quite handsomely from their employer over some months, as they freely admitted, but nonetheless thought it entirely improper that the supermarket should be allowed to use covert video footage of them to prove it [here].

Continue Reading

Seventh Circuit:  ADA Does Not Prohibit Discrimination Based on Future Impairments (US)

HealthcareOn October 29, 2019, railway operator Burlington Northern Santa Fe Railway Company (“BNSF”) prevailed before the United States Court of Appeals for the Seventh Circuit – which covers Illinois, Indiana, and Wisconsin – in a case in which the company argued that its refusal to hire an obese candidate due to an unacceptably high risk that the applicant would develop certain obesity-related medical conditions incompatible with the position sought did not violate the Americans with Disabilities Act (“ADA”).  Continue Reading

When is refusing a settlement offer the reasonable conduct of ET proceedings? (UK)

Don’t you just love a good understatement? How about this little beauty on the merits of a rejected flexible working complaint: “The difficulty for the claimant is that she never proved that this arrangement could work by producing the required amount of work in the required time. This was both in terms of quality and output. The claimant did not comply with the agreed start and finish times. She did not comply with her output targets” and then, with admirable restraint “This did not help her position“.

Continue Reading

US Supreme Court Leaves Standards of Website Accessibility Ambiguous, Vexing Businesses

Employers already are (or should be) familiar with their obligations not to discriminate against and to reasonably accommodate employees and applicants with disabilities under the Americans with Disabilities Act (“ADA”), which requirements are addressed in Title I of the ADA.  But the ADA also imposes additional non-employment obligations on governments and municipalities (Title II) and on private places of public accommodation (Title III).  Nearly all private employers are also “private places of public accommodation,” as that term includes a wide range of entities such as restaurants, bars, hotels, theaters, stadiums, grocery stores, hospitals, doctors’ offices and pharmacies, banks, accountants’ and lawyers’ offices, retail stores, museums, libraries, zoos, amusement parks, private schools, and day care centers.  Not only must those facilities be physically accessible to patrons with disabilities, but for years, courts have debated whether such entities also must make their websites accessible to internet users with various disabilities, such as visual and hearing impairments.  Although the attached article, reprinted from Wolters Kluwer’s Employment Law Daily, authored by Squire Patton Boggs partners Laura Lawless and Rafael Langer-Osuna, primarily addresses retailers’ obligations regarding accessible website design, we recognize that many of our employment clients offer public accommodations and host websites, and thus is a timely reminder of the broad responsibility of businesses to accommodate the disability community. Continue Reading

Don’t Stress – Anxiety May Not Always Be A Disability Under the ADA (US)

ADA Americans with Disabilities ActOn October 22, 2019, a Tennessee federal district court dismissed a disability discrimination lawsuit filed by the U.S. Equal Employment Opportunity Commission (“EEOC”) under the Americans with Disabilities Act (“ADA”) against West Meade Place LLP (“WMP”), a skilled nursing facility, after finding on summary judgment that the EEOC failed to establish that former WMP employee Carma Kean was disabled, as that term is defined under the ADA.

In EEOC v. West Meade Place LLP, the EEOC, acting on behalf of Ms. Kean, alleged that she had anxiety and that during “flare-ups” of this condition, she was unable to work.  The EEOC alleged that WMP violated the ADA because it failed to accommodate Ms. Kean’s condition by providing her with requested time off work, and also engaged in disability discrimination when it terminated Ms. Kean’s employment.   Continue Reading

EEOC Must Continue Collecting Pay Data Until January 31, 2020 (US)

On October 29, 2019, the U.S. District Court for the District of Columbia ordered that the EEOC must continue to take all steps necessary to complete EEO-1 Component 2 data collection for calendar years 2017 and 2018.  As we recently discussed here, the EEOC filed a motion on October 8, 2019 asking the court to issue an order deeming the Component 2 data collection “complete.”  The court denied the EEOC’s request and ordered the agency to keep collecting pay data until January 31, 2020.  Continue Reading

Careless talk, costs, lies: EAT upholds £170,000 costs award (UK)

It’s all about the numbers in Brooks -v- Nottingham University Hospitals NHS Trust, a new case on when an Employment Tribunal can order costs against an unsuccessful participant – 18 alleged protected disclosures, 40 detriments, a 27-day hearing, a witness statement of 214 pages and over a thousand paragraphs and a hearing bundle of well over the same number of pages. Most particularly also, as none of that proved to be of any assistance at all to the claimant, a costs award against him of £170,000. Ouch.

Continue Reading