Essential: All Party Group recommends extending Health & Safety Fees for Intervention

I recently blogged about protection against payment of Health & Safety Executive (HSE) Fees for Intervention (FFI) for businesses regulated by HSE available under our Commercial suite of products. (“Covered: health & Safety Executive Fees for Intervention”, posted 8 October). It seems that the Government has realised that local authorities might also benefit, if their health & Safety enforcement teams were able to claw back administrative costs. 

The All-Party Parliamentary Group on Occupational Safety and Health (APPGOSH) has published a report, "Local Authorities and Health and Safety"  which challenges the assumption that workplaces which are regulated by local authorities (as opposed to the HSE), such as offices, shops, warehouses, and pubs and clubs, necessarily carry a lower health and safety risk. The report points to the high rates of injury and illness in warehouses, and of occupational disease in offices (stress), supermarkets (musculoskeletal disorders), and pubs (violence). 

Report recommendations include:

• placing more emphasis during inspections on health, rather than just safety;
• re-introducing compulsory pro-active inspection for all new premises or businesses regulated by the local authorities
• extending fees for intervention (FFI) to local authority-regulated activities.

FFI was introduced in October 2012, allowing the Health & Safety Executive to charge businesses in the sectors that it regulates for the costs of regulation at a rate of £129 per hour. Further information about FFI can be found in my earlier blog. 

Our first Wellbeing Week!

During our first Wellbeing Week (8th – 12th October 2018) we focused each day on one of the 5 ways to wellbeing (give, be active, take notice, keep learning, connect). It was a great way to introduce these five simple strategies into the lives of our employees and see if they would feel the benefits.

Monday - Give

We started the week gently with a lunchtime craft club with colouring and a cuppa. Colouring books for adults are extremely therapeutic and can help generate wellness, quietness, mindfulness and the exact same benefits which meditation imparts on the brain. 

In the afternoon there was a slightly livelier ‘office improv’ session, designed to look at the fact that everyone has their own unique view on the world which makes everyone an interesting person, but fear stops us from expressing it out loud. The focus was on sharing unique perspectives through fun and silly games and learn that making mistakes can be one of the best things you'll ever do.

Tuesday – Be active

What better way to get active than to head to the gym for a lunchtime workout? Our group undertook a gruelling bodyweight exercise class which certainly got the blood pumping!

Wednesday – Take notice

This day was all about remembering the simple things that give you joy. Some of our lucky employees enjoyed 10-minute massages, with massage therapy helping to reduce stress, tension and promote overall wellbeing, it was a very pleasant part of their day!

Our wellbeing champions also distributed 'Happiness Postcards' around the office, provided to record 3 things which have made you happy that day. A simple but incredibly powerful action. It's about taking the time to notice the good things in our lives and get the more from these.

Thursday – Keep learning

What matters to you? This workshop was designed to increase our employee’s awareness of what matters to them at home and at work. With an opportunity to reflect on their current level of wellbeing and identify areas in which you would like to make changes, practical tools and strategies were shared to help them move towards improvement.

Taking a more ‘hands-on’ approach to learning, our Claims Team Leader, Hayden, shared invaluable knowledge on how to change the tyre on a push bike. With nearly 20% of employees cycling to work, it was an invaluable session for those at risk of a puncture. Thanks Hayden!

Friday - Connect

On the final day we took the opportunity to connect with our group of wellbeing champions (who are also qualified mental health first aid champions) and hear about the plans for our new eco-garden, along with a free buffet lunch for all!

Our first wellbeing week was an opportunity for our employees to not only engage in new activities, but to also have the opportunity to consider their own wellbeing and the ways of wellbeing which work best for them - give, be active, take notice, keep learning or connect.

Thank you to everyone involved and especially our wellbeing champions for organising a wonderful week of activities. The feedback has been really positive and we are also working with the Workplace Wellbeing Charter to ensure that we continue to look after our employee’s wellbeing in the most effective way. We are already looking forward to another Wellbeing week next year! 

Faster and free - Your clients’ right to medical records under GDPR?

The introduction of the General Data Protection Regulation (GDPR) back in May generated a lot of uncertainty and work for businesses but created clear benefits for us all as individual “data subjects”. One up-side that went largely unnoticed is the right for clinical negligence claimants to have free access to their medical records.

Before this summer, even just the mention of GDPR might be met with groans from colleagues tired of hearing about this important but inevitably complex piece of legislation that all of us in any sort of business had to get our heads around, to some extent.

However, one specific aspect that has been of particular interest to all of us who work on behalf of people who have been harmed by medical malpractice, is the impact that the Regulation has had on accessing a client’s medical records.

The right to see the information that medical professionals have recorded about us isn’t new, of course. Such rights were certainly codified under GDPR’s predecessor the Data Protection Act in 1998 and, to a limited extent, the Access to Medical Reports Act back in 1988.

Two key aspects of GDPR have already had a significant impact on how such matters are progressed. First, the regulation has reduced the amount of time that an organisation has to respond to a subject access request (SAR) from 40 to 30 calendar days, speeding up the process of assessing a claim which should be ultimately beneficial for all parties.

Second, and perhaps more important, has been GDPRs provision that organisations are no longer permitted to charge an administration fee for responding to a SAR, in most instances. As well as making it easier for prospective clinical negligence clients to get hold of their medical records before a specialist solicitor assesses the merits of their case, this also has the effect of speeding up the claims process. 

These implications of GDPR are not entirely uncontentious and there has been some resistance, particularly for some smaller medical organisations such as GP surgeries, claiming to be overwhelmed by the demand to review large, historic medical files in order to redact data about any third parties who may not have consented to the release of any information about them.

There remains some uncertainty around precisely where such responsibilities fall but, on the whole, GDPR appears to have supplied a rare improvement for claimants trying to assert their legal rights in what are often the most difficult of circumstances.

While surveying its members on the impact of such requests, the BMA has produced some useful guidance for the medical profession about GDPR, particularly its FAQs related to SARs.

Like all legislation, there are clearly some wrinkles that still need to be ironed out. Nonetheless, anything that speeds up the lengthy process of seeking redress for injury caused by clinical negligence can only be a good thing, for all parties involved.

Covered: Health & Safety Executive Fees for Intervention

The inclusion of cover that pays Health & Safety Executive Fees for Intervention (FFI) has attracted positive feedback following the relaunch of our commercial products in the Spring. Here’s some further information about FFI that’s aimed at helping agents explain what the new cover is and how enhances the value of the products. 

Background

• Fee for Intervention (FFI) is a “cost recovery scheme” operated by the Health & Safety Executive (HSE). Under the Health and Safety (Fees) Regulations 2012.    
• Under the Health and Safety (Fees) Regulations 2012, workplaces in ‘material breach’ of health and safety laws are liable for recovery of the HSE’s costs for any inspection, investigation and enforcement action that is undertaken. A ‘material breach’ occurs when the HSE issues a notification of contravention, an improvement or prohibition notice, or a prosecution.
• When criminal proceedings are started, FFI cease and criminal prosecution costs apply. (Note - prosecution costs are not covered by LEI, but the cost of legal representation is).
• From October 1, 2012, the HSE have been able to recover the costs of its interventions from businesses found to be in material breach of the law, even in the absence of a prosecution.
• If the HSE intervenes they are under a legal duty to recover costs in all cases where there is (i) a material breach of health and safety law and (ii) a requirement to rectify the breach is made in writing.
• There does not have to be an incident or prosecution to trigger such HSE involvement

Scope of FFI 

Sectors regulated by the HSE include: factories, mines, schools, fairgrounds, nursing homes, government premises, dentists and doctors’ surgeries. (Other occupations are regulated by  local authorities which do not operate a fee regime).

FFI applies to public and limited companies, partnerships, the Crown and public bodies, and to self-employed people.

It does not apply to:

• Self-employed people who only put themselves at risk
• Employees (Partners are not employees) 
• Work where another HSE fee is already payable (for some or all of that work), e.g. under the Control of Major Accident Hazards Regulations 1999

Other organisations that enforce health and safety law, such as the police or local authorities, will not be able to recover their costs under FFI.

FFI Charges 

Inspection with no action taken: No costs will be recovered
Inspection resulting in an email or letter: £750
Inspection resulting in a notice being issued: £1500

Full investigation: Ranges from approximately £750 through to several thousands of pounds.

HSE will invoice the business and expect payment within 30 days. A complaints process is available allowing businesses to bring a complaint about an invoice and HSE will explain the process when a charge is levied.

ARAG’s position

In our view, FFI are not fines and they have not been introduced as a civil penalty - but solely to support Government policy which requires that service users should pay for the costs of the services they use. HSE policy guidance makes it clear that the purpose of FFI is to recoup costs, and of course exposure to FFI may encourage good H & S practice. The law does not prohibit the use of insurance as a funding mechanism.

FFI could be considered similar to an order for opponents’ costs in a civil case, but the charges relate to internal admin, rather than legal costs incurred. Including indemnity for FFI for commercial policyholders completes a ring of protection by extending indemnity that has always been available for legal costs to appeal H & S enforcements notices, and to defend prosecutions.   

Since data has become available that allowed us to calculate the risk, we were pleased to add FFI cover as part of the May 2018 relaunch of commercial products. 

Notifying claims

We cannot settle FFI invoices until they have been raised, but policyholders should tell us about H & S activity as soon as they are aware that the H & S Exec has identified non-compliance that will incur FFI charges. We may also be dealing with a claim to appeal against an improvement or prohibition notice that relates to the intervention that has resulted in liability for FFI. If that is the case, customers should quote the reference of any claim that relates to the same event. FFI invoices should be sent to us promptly for payment.  

Supporting Our Superhero Brokers

For a lot of us, learning is something we associate with our younger years and school, college, sixth form or university. Our later years are traditionally just for work.

Recently though this has been changing. More and more people are seeking out new skills and information, both to stay ahead in their careers and exercise their minds. The NHS advises adults continue to learn for their entire lives to keep up their mental wellbeing.

Continued professional learning and mental wellbeing  are a huge focus for us as a business. This year we've been working on something to mirror what we are doing internally and offer our business partners the same opportunity to learn.



To do this we're launching a completely free online training platform. This platform is designed to be a simple, easy to use way to get you intimately familiar with our products and services. It's available on your desktop just through your web browser, or on any iPhone, iPad or Android device using the EduMe app. You can see a sample of what the platform looks like on the right.

Our first module is an introduction to legal expenses insurance, then there is a specific module to help you get to grips with our recently relaunched Essential Business Legal.

The training platform has been tested and trialled both internally at ARAG and externally with some of our business partners to very positive feedback. It could even qualify towards the continual professional development (CPD) hours you need for this year, to find out if it does speak to your supervisor or compliance team.

To get started with the ARAG training platform all you need to do is click here. You'll need to sign up with your email and a password, and don't worry we won't be using your data for any marketing.

It's completely free and we'll be adding new modules on other products and services in the future so you might want to bookmark the site so you can check back.

A judge has ruled that a business that acted on behalf of a landlord to evict a tenant “crossed the line” in carrying out regulated legal services that only qualified solicitors are permitted to provide. Here’s a link to the full story which appeared on Litigation Future’s website: 

https://www.legalfutures.co.uk/latest-news/unregulated-eviction-service-crossed-line-into-litigation

It’s easy to see how landlords are tempted to use services such as “Remove a tenant” as an alternative to representing themselves, or paying for solicitor representation in legal proceedings. Not only did “Remove a tenant” break the law, the legal notice that they issued to repossess the property was faulty. The landlord had to go back to court to proceed with their claim using alternative grounds to repossess their property.

Legal expenses insurance for landlords provides a helpline to talk through correctly issuing a landlord’s notice to repossess and ARAG’s Landlord Legal Solutions policy allows your landlord clients to download the notices and a covering letter for free from our legal services website. If a tenant fails to leave on expiry of the notice, the policy pays legal costs for a regulated law firm to act for the insured.

According from their website “Remove a tenant” charge from £50 to issue a repossession notice, and the cost of preparing for a court hearing and representation is charged from £250 (+VAT) http://www.removeatenant.co.uk/legal-services/ - this is much more than the cost of Landlord’s Legal Solutions over the average term of a tenancy. Surely peace of mind and confidence that claims will be dealt with properly is surely an attractive prospect for customers who may be reluctant to opt in to legal expenses? I’ll leave you to guess the moral of this story...

What Every Innovator Needs To Know About R&D Tax Credits

From time to time we receive queries about particular HMRC regulations and whether we cover claims that arise from them under Essential Business Legal and our other commercial products. 

The topic of self-employed contractors, who provide their services through a service company and are subject to “IR35” comes up from time to time. (The answer is “yes”, we will deal with HMRC enquiries and disputes for self- employed contractors provided that the conditions of the policy have been met). Last week, we had a query that hasn’t come up before - about Research & Development (R&D) tax credits. 

If you have clients that engage in innovative projects in science and technology, you may be interested in this. 

About R&D Tax Credits

R&D tax credits can be claimed by companies which have incurred expenditure on innovative projects in science and technology. They can be claimed by a range of companies that seek to research or develop an advance in their field. HMRC define the types of project that qualify for R&D credits. E.G:

• The work must be part of a specific project to make an advance in science or technology.
• It can't be an advance within a social science like economics or a theoretical field like pure mathematics.
• The project must relate to the company's trade - either and existing one, or one that they intend to start up based on the results of the R&D.
• To get R&D relief the business must explain how a project:
• looked for an advance in science and technology
• had to overcome uncertainty
• tried to overcome this uncertainty
• couldn't be easily worked out by a professional in the field

SME R&D relief allows companies with up to 500 employees to:

• deduct an extra 130% of their qualifying costs from their yearly profit, as well as the normal 100% deduction, to make a total 230% deduction
• claim a tax credit if the company is loss making, worth up to 145% of the surrenderable loss

A different significantly less generous scheme applies for larger firms and I‘ve included a link below for more information:

https://www.gov.uk/guidance/corporation-tax-research-and-development-tax-relief-for-small-and-medium-sized-enterprises#how-to-claim-rd-relief

According to a post by one lawyer firm, the HMRC’s large business directorate is challenging more tax relief claims and the sum being disputed in relation to R&D tax credit claims nearly quadrupled in 2017, up from £90m to £425m for large businesses.

Claiming R&D Tax Credits 

Businesses can make a claim for R&D Tax credits when they fill in their Corporation Tax self- assessment return by calculating their expenditure on R&D and supporting their claim with suitable information.

Does Cover Apply If HMRC Challenge R&D Tax Credits Claimed? 

Good news! Essential Business legal will come to the rescue if HMRC investigate the insured’s Corporation Tax self-assessment return and raise a challenge about a tax credit claim provided that fraud has not been alleged of course, and that the return has been submitted to HMRC on time. 

One innovation deserves another. We hope that your innovative clients enjoy the peace of mind provided by our innovative (relaunched) Essential Business Legal and other Commercial legal expenses insurance products!

Volunteering for FOCUS!

Last Friday, 27th July, Fran, Hannah, Ollie & Jake caught the train to Cheltenham to volunteer for FOCUS at the Cheltenham Cricket Festival T20 game. 

FOCUS is our charity of the year and is the charitable fund for the Gloucestershire Oncology Centre, which raises funds to provide extra care, specialist equipment and improvements to facilities for local cancer patients.

Our volunteers collected raffle tickets in the hospitality tent which took over £1,600, and £394.10 from a bucket collection at the end of the day, raising nearly £2,000 in total!

In between the raffle and bucket collection, our volunteers took a tour of the oncology centre at Cheltenham hospital to see just how valuable our fundraising efforts are. 

The FOCUS support centre is situated in the heart of the Oncology Centre in the outpatient waiting area of the Hospital. The centre is fully funded by donations and is an invaluable source of information for patients, their carers and families. The team are there to support patients at every step; from a diagnosis of cancer to advice during and beyond their treatment.

The Focus Support Centre also offers: general information, support and advice on many types of cancer, talking with children, financial and estate planning, travel insurance, fatigue, support for carers etc. The centre is able to signpost people to benefits support, health and wellbeing events, counselling and psychological services. The support team also recruit a team of volunteer qualified therapists who offer complimentary therapies for patients. 

Every donation makes a real impact by funding extra care and equipment over and above that provided by the NHS. Recent donations have provided:
- a weekly wig clinic with a professional wig consultant, free of charge
- special reclining chairs which give comfort to patients receiving chemotherapy treatment
- sky ceilings which transform the environment in radiotherapy treatment rooms
- staff to expand the Focus Research Centre and trials to local people fighting cancer.

We are currently at 45% of our 2018 fundraising target for FOCUS, you can track our efforts here: https://uk.virginmoneygiving.com/ARAGLEI

P.s for the cricket fans out there, Gloucestershire beat Glamorgan by 30 runs.

A Shocking New Report on Sexual Harrassment in the Workplace

The Women and Equalities Select Committee has published a report about sexual harassment in the workplace. The Committee found that sexual harassment at work is widespread and commonplace but there has been a failure by employers and regulators to tackle unlawful behaviours.

·         40% of women and 18% of men have experienced unwanted sexual behaviour in the workplace

·         Women aged 18-34 are most at risk of sexual harassment at work, with 43% having experienced it

according to a survey of UK adults that was carried out by the BBC.

The report calls on Government to put sexual harassment at the top of the agenda and sets out five priorities.

·         Introduce a new duty on employers to prevent harassment, supported by a statutory code of practice outlining the steps they can take to do this; and ensuring that interns, volunteers and those harassed by third parties have access to the same legal protections and remedies as their workplace colleagues;

·         Require regulators to take a more active role, starting by setting out the actions they will take to help tackle this problem, including the enforcement action they will take; and making it clear to those they regulate that sexual harassment is a breach of professional standards and a reportable offence with sanctions;

·         Make enforcement processes work better for employees by setting out in the statutory code of practice what employers should do to tackle sexual harassment; and reducing barriers to taking forward tribunal cases, including by extending the time limit for submitting a claim, introducing punitive damages for employers and reducing cost risks for employees;

·         Clean up the use of non-disclosure agreements (NDAs), including by requiring the use of standard, plain English confidentiality clauses, which set out the meaning, limit and effect of the clause, and making it an offence to misuse such clauses; and extending whistleblowing protections so that disclosures to the police and regulators such as the EHRC are protected;

·         Collect robust data on the extent of sexual harassment in the workplace and on the number of employment tribunal claims involving complaints of harassment of a sexual nature.

You can access links to the full report, a summary or the report conclusions here - https://bit.ly/2JRNbTs

ARAG policyholders who have registered to use our Business or Consumer Legal Services website can dip into our law guide to learn more about workplace harassment. The Employee handbook for Business customers sets out non-contractual matter and includes policies and procedures to minimise the risk of potential employee lawsuits, such as discrimination, harassment and unfair dismissal. www.araglegal.co.uk

Is the Criminal Justice System Criminally Under-Funded?

The Justice Select Committee has issued a critical report in response to criminal legal aid reforms. In criminal cases, there is a common law right to legal advice, and a right to legal representation under the European Convention on Human Rights. The committee heard “compelling evidence” of the fragility of the Criminal Bar and criminal defence solicitors' firms, which places these rights at risk.

It concluded that under-funding of the criminal justice system in England and Wales threatens its effectiveness, tarnishing the reputation of the justice system as a whole, and undermining the rule of law.

The Committee recommends that the Government conduct an urgent cross-departmental review of funding of all elements of the criminal justice system, with the aim of restoring resources to a level that enables the system to operate effectively.

Comment:

Legal Expenses Insurance gives limited cover for criminal defence which usually is only available for work-related and motoring prosecutions. As there is no possibility of transferring liability for defence costs from the state to a private funder (such as an insurer), the prospect of an under-funded  system, that potentially compromises an individual’s right to legal representation which is necessary for a fair trial,  is of particular concern.   

Protecting Property From Fraudster Tenants

When you think of ways Problem Tenants could cause your clients financial difficulty you'd usually think of things like them damaging the property, inviting criminal elements in to the home or simply not paying rent. But there are other, more damaging things, that an unscrupulous tenant can do.

One of these things is to apply for a loan or mortgage secured on the property. This can be especially damaging, as there's a chance that your client could end up losing an awful lot of money if the lender issues legal proceedings for repossession. 

So how could this happen? After all the tenant doesn't own the house, your client does. But if that tenant has utility bills or documents showing that they live at the property, they can apply for a new mortgage or loan secured on the property. This will be registered with the Land Registry in due course, which will generate an alert about the fraudulent loan.

That should be it right? Your client receives the alert and stops the unscrupulous tenant from taking out the loan. But this will only work if the contact address that the Land Registry hold for your client isn't the property address. Because otherwise the tenant will be the one who receives the alert and your client will be none the wiser!

Here are four things your clients can do to make taking a fraudulent loan out on their property much more difficult, if not outright impossible:

• Make a list of every property they own
• Check each of those properties with the Land Registry to ensure that they have the right contact details (their home or business address and the right email address)
• Arrange for property alerts to be sent if somebody tries to change the register of any of the properties
• Make sure that any time they buy a new property they repeat this process, and never let a property without the correct alerts set up on it

Keeping track of properties and setting up an alert with the Land Registry is so important. If your clients have a lot of properties advise them to keep an organised list with details of their registration and alerts and that they keep this up to date.

If you are a landlord you can click here to get started with your property alerts, and don't put this one off as it could come back to bite you in future! If you have landlord clients feel free to share this blog with them, as it could be a real life-saver.

ARAG provides access to a legal advice line that can support your clients through an issue such as this, and a wealth of templates and pre-written letters to be used by landlords in disputes with tenants and other bodies. All this on top of the insurance that pays legal costs for landlords to recover vacant possession (subject to the correct legal notice being issued) , to pursue rent arrears and compensation for property damage and to defend criminal prosecutions that arise from renting out property. Indemnity for rent arrears can also be arranged.

The Importance Of Expert Knowledge

Like the solicitors at our partner firms, everyone at ARAG recognises the importance of staying up-to-date with the latest legal developments in those practice areas in which our after-the-event policies are used. But such expertise often extends beyond the realms of purely legal knowledge.

Just one example is the progress over recent years in using immunotherapy treatments for mesothelioma, which offer unprecedented and realistic hope for asbestos victims, but at a considerable price.

Trying to include the cost of such treatments in a settlement requires knowledge, not just of the current legal position, but also the latest clinical trials and decisions with regard to NHS funding of such drugs.

Even today, when medical miracles abound, the prognosis for mesothelioma patients is bleak and the standard treatments brutal. A combination of surgery, chemotherapy and radiotherapy may extend life for some terminally ill patients, but the reprieve is likely to be measured in months, not years.

Relatively new “immunotherapy” drugs, such as nivolumab and pembrolizumab, have been approved for NHS use in treating some cancers under certain circumstances, but trials are still ongoing for mesothelioma patients, so many would have to pay for them personally, to benefit.

The cost, even for a short course of such drugs, currently runs to tens of thousands of pounds which, if they do their job, could turn into an annual bill well into six figures.

Such sums, especially given the uncertainty surrounding both the treatment’s success and for how long it might be needed, inevitably make things very difficult when trying to reach a settlement in this sort of claim.

Nonetheless, I’m very pleased to say that we have had some recent successes with partner firms working on this sort of industrial disease case. Through their diligence and expertise, clients who have been dealt a cruel hand now have the hope afforded by the latest in medical advances.

Such successes demonstrate the importance of all the homework that we and our solicitor firms do to stay in touch with the latest developments in relevant practice areas. They also reflect ARAG’s mission, for more than 80 years, to provide equal access to justice for all citizens, regardless of their means.

In these cases, access to justice might also be the difference between life and death.

Government Consults About Longer Tenancies

The Government is consulting about measures to increase security for tenants in the private rented sector – such as introducing a 3 year tenancy with a 6 month break clause. The private rented sector makes up 20% of all households.

The average length of residence in the private rented sector is 3.9 years in comparison with 17.5 years in the owner occupier sector and 11.3 years in the social sector. However, 81% of tenancies granted are for an initial fixed term of 6 or 12 months

The consultation, which is open until 26 August, seeks views in the barriers to longer tenancies and how to over- come them. Any policy changes brought forward as a result of the consultation will be subject to appropriate assessment. It is likely that further grounds for repossession may be introduced, for example to allow a landlord to sell their property that is subject to a three year let.

With an eye on how reforms may affect our Landlords’ Legal and Commercial Property Owners’ products, we will track the consultation response document and any legislation that emerges to implement changes. In due course you can expect some further blogs as we keep you updated.

To make sure you don't miss future blogs you can subscribe to our updates by entering your email address in the box on the right hand side of this page. 

If you'd like to see the original announcement from the Ministry of Housing, Communities and Local Government you can do so here: https://www.gov.uk/government/news/longer-tenancy-plans-to-give-renters-more-security

ARAG Legal Services - The easy way to keep your customers up to date on the latest legislation

If your client is a commercial policy holder they can get access to our ARAG Legal Services website. Through this site we publish a regular newsletter produced by Epoq with relevant updates to legislation that could affect your clients. Here’s a sample from the latest newsletter:

Ignorance isn't always an excuse for disability discrimination

There are several types of unlawful disability discrimination. One type is unfavourable treatment because of 'something' arising from a disability. This type of discrimination requires that the employer knows about the disability, and it's only unlawful if it can't be justified.

The question in a recent case was whether the employer, in addition to knowing about the disability, has to know that the something arose from the disability in order to be found guilty of this type of disability discrimination. The Court of Appeal has recently given the answer: no – if the employer knows about the disability, they might be found to have discriminated even if they don't know about that disability's effects.

The claimant, a teacher, had cystic fibrosis, which the school was aware of when they appointed him. This condition causes mucus to build up in the lungs, and to counter that the teacher spent many hours each day in rigorous exercise. This meant he had less time to work than others, and so he had to get a lot done in a short time. When a new headteacher started, his workload increased. All things together meant he struggled to cope with the demands and became stressed.

In this state of stress, he made the mistake of showing Halloween, an 18-rated film, to 15-16 year-olds. He was dismissed for that error of judgment.

The school didn't know of the link between the teacher's condition and his actions – the medical evidence available at the time of the dismissal didn't demonstrate a link. The tribunal therefore found the teacher's dismissal not to be unfair, so his unfair dismissal claim failed.

However, they upheld the claim for discrimination arising from a disability. Knowledge of the consequences of the disability weren't needed for that claim to succeed. Given that the tribunal didn't find the dismissal unfair, how could they also agree that there'd been discrimination?

The answer is that different tests are applied. For unfair dismissal, employers are given a lot of discretion. Tribunals take care not to ask what decision they would have made, but rather whether the employer's decision was within a range of reasonable responses. For this type of discrimination, on the other hand, the courts consider objectively whether an employer's action was a proportionate response to the claimant's actions. They noted, in particular, that if the school had made reasonable adjustments the teacher would not have been in that position.

What this means for you

This shows that you should consider all the consequences of your actions and, especially if an employee has a disability, you should actively consider reasonable adjustments. If you can justify all your actions you shouldn't be found guilty of any type of discrimination.

How we can help

If you need further information about an employee's health conditions, you may wish to use our Letter to an employee seeking consent to a medical examination*.

To get access to the ARAG Legal Services website all your customers need to do is go to www.araglegal.co.uk and register, using the voucher code printed on their policy wording. Once there they will be able to sign up for the newsletter, read old issues and access the library of form letters and other helpful resources.

*This letter is also available on the ARAG Legal Services site to commercial policy holders.