Legal position on varying contract of employment

One of the most common issues arising in employment law relates to whether an employer can impose contractual changes in the employment contract on the employee.

The short and simple answer to this is no – an employment contract is no different to any other contract in that, once terms are agreed, they can only be varied with the consent of both parties. However, the position is not quite so straightforward in practice, largely due o the unequal bargaining position between the parties.

With employment situations it is quite common for written terms to be varied by day to day events – what was initially agreed may be varied by what happens in pract8ice which then becomes implied into the contract. Perhaps a good example would be a change to what the employee actually does on a  day to day basis, his or her role, or perhaps where there is a set time stated for lunch or other breaks but in reality that is now what happens. So, contracts can be altered by conduct which both sides expressly agree or which simply develop over time.

The above does create risks – even if an employee or for that matter employer are not overly happy about a change in practi9ce, if they simply let it go, then even if there is a technical breach of contract, the legal concept of waiver may well then apply. In other words, there is generally a certain amount of time for a party to refuse a contractual  change either suggested expressly or by conduct. This is particularly important in the context of changes to pay or working hours. If an employer seeks to alter  these fundamental terms, an employee will need to ensure that they do not simply acquiesce in these changes.

A further potential complication arises from the fact that some employers are now including some important employment policies and practices in documents such as staff handbooks which are expressly stated to be non-contractual. In those situations, it may be possible for the employer to legitimately change those policies without employee express consent.

If an employee wishes to take action over an attempt by an employer to unilaterally alter the employment contract, it is worth obtaining legal advice because the type of possible breach of contract will determine the rights available to the employee who wishes to reject the changes.

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Popular websites failing to comply with Equality Act legislation

Price comparison sites such as Go Compare, and Compare the Market are failing to meet the needs of older and disabled users. In particular, research shows that those with physical problems, visual impairments and dyslexia have struggled using these sites.

These websites are failing to meet basic guidelines and requirements for web accessibility, charity AbilityNet has claimed. This charity focuses on helping those with disabilities use the internet to improve their lives. It found that some of these price comparison sites were virtually impossible to use.

These price comparison sites were tested through a number of manual checks, and also by testing technologies such as voice recognition tools and screen readers. AbilityNet gave a rating out of 3 stars, where 3 stars represented a base level of usability for those with disabilities. Most of the price comparison sites tested scored a mere 1 star rating, with only price comparison site Kelkoo scoring a 2 star. In order to gain a 3 star rating or above, price comparison sites would need to meet the needs of those with impaired vision, physical problems or those that have dyslexia. An example could include dealing with the problem of a user not being able to use a mouse.

This issue of not being able to successfully and effectively access these sites is obviously a problem in itself, but it also has wider implications for those that are denied access. These people may not have a wealth of money, and are prevented from shopping around easily for the best deals online. This means that they are probably paying higher fees and premiums than they need to, which is putting a further strain on some peoples’ already tight pockets.

These issues are completely contrary to the Equality Act legislation and possibly Human Rights law, which provides that it is illegal to discriminate against someone, either directly or indirectly, on the basis of a protected characteristic. Disability and age both fall within the protected characteristics. Despite the fact that many companies are not knowingly making it difficult/impossible for disabled/old people to access their sites, it can be compared to ‘real life’ situations. In real life situations, a company would never prevent or make it difficult for a disabled person or an old person to enter their store, and thus the same concept should be applied online in the virtual world with regards to their website. Many businesses still make the mistake of believing that disability law only applies to employment law and employees but this is not the case, it is of course much wider.

Small steps that could be taken include not making the text on the websites hard-coded. This would mean that those that are visually impaired or who live with dyslexia would be able to enlarge the text in order to better read it. Additionally, text labels which attach to images are often either absent or completely uninformative, making it extremely difficult for blind users and text browser users to comprehend the website. Continue reading

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Disability discrimination – law firms not getting it right

Clients with hearing impairments neglected by law firms according to solicitors in London

A law firm’s duty to its clients

By the very nature of their work law firms deal with all sorts of clients in the course of their every-day practice. Each client comes with their own individual needs which a firm should try to satisfy but some clients require a special level of treatment. In particular, when dealing with clients who have learning difficulties, disabilities, visual impairments or language difficulties firms should adapt their approach to cater for their specific needs. Failing to do so means that those groups receive less of a service than other clients and could result in discrimination claims being brought against firms.

One group feeling under-cared for

The level of service provided to customers, including how individual needs are met, is monitored by consumer watchdogs. Recently the service provided to clients who are deaf or hard of hearing by law firms has been criticized. Consumer watchdogs have warned law firms that unless their service improves to these vulnerable groups of clients they may face a plethora of clams for discrimination.

The problems faced by the hearing impaired

In Britain alone there are over 10 million people who suffer from problems with their hearing. The problems range from minor impairments all the way to complete deafness, but for each individual their problem makes tasks like seeking legal advice just that bit harder. Many claims from the hearing impaired relate to welfare benefits, employment or discrimination in relation to the supply of goods and services. In order to be represented throughout the life of a claim a client must feel that their legal advisor understands their case and all the background information.

Communication between client and lawyer is of utmost importance and without it the client may feel like no one is on their side and they have not received proper representation. According to nearly 2000 complaints received by the Royal Association for Deaf People (RAD) in the last 5 years clients with hearing impairments are feeling that this first stage of the process is not happening and law firms are not preparing and adapting their methods to promote fruitful and effective communication with them. This has led the hearing impaired to feel isolated and vulnerable and to see their lawyers as adversaries rather than on their side.

What law firms need to do

It seems unlikely that the barriers to communication are the result of any intended malice or resentment toward the hearing impaired. It seems that the problem stems more from a lack of awareness of the specific needs and requirements of this group of clients. As a result of this exposure of failing to cater for the needs of the hearing impaired two initiatives are to be launched to help raise awareness.

Firstly, the Solicitors Regulation Authority (SRA) is to release best-practice guidelines, with online training elements and videos , in order to deal with:

  • Services available to interpret
  • The differences in how the law applies
  • Different ways to effectively communicate

It is hoped that raised awareness will eradicate the current problems deaf people face in law firms such as failures to adapt materials, non-functional loop systems, failures to provide or pay for sign-language interpreters even when requested and inadequate lighting in conference rooms.

Secondly, the RAD is to release a charter which law firms will be able to sign up to. This will follow training programmes as part of lawyers’ Continuing Professional Development, providing education and awareness in dealing with deaf clients. The RAD hope to create a minimum standard which is adhered to nationwide in the provision of legal services to the deaf and hard of hearing.

Will firms react?

Whether it is through these schemes or off their own back law firms need to clean up their act if they are to avoid discrimination claims and remain competitive in the current economic climate where reputation is everything.

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2 sides to every story

On a general level, one area of law which objectively seems quite unfair is Landlord & tenant and residential possession proceedings in particular. the fact that a tenant or squatters can sit in a property for some months without paying rent and the Landlord or owner than has to go through a tortuous process to regain possession, sometimes even with a Local Authority forcing the tenant to sit in the property until the Bailiff attends seems inherently unfair.

In the case of squatters, again, the rules that the owner must wait for a possession order, incur significant costs in getting a court order and face the frustration that the property may all the while be being trashed seem ridiculous.

So, on the face of it, the idea that squatting will be criminalised seems quite fair and sensible, but some new figures indicate there are 2 sides to this argument, and some of those arguments also involve disability issues.

First, there are 2 practical good reasons that simply criminalising squatting would not be a great idea :-

1. Criminalising squatting suggests that many squatters are simply lazy opportunists looking for an easy life but who would not want a spell in prison or a criminal record. this does not accord with research undertaken, which indicates that time in prison for many squatters may be better than life on the streets.

2. The new legislation which is proposed does not include any police powers to immediately remove squatters which is what would be really wanted by property owners.

Turning to the underlying socio-economic and disability issues, research from the Centre for Regional Economic and Social Research at Sheffield Hallam University also indicates some good reasons for a close look at the squatting issue :-

  • nearly 80% of squatters say that have been turned down by a local authority, having sought help
  • nearly 35% of squatters have previously been in care
  • over 40% of squatters have health issues or or a physical disability
  • over 40% claim to have mental health problems

With the cuts both to disability benefits and legal aid, it looks like these issues are only going to get worse. whilst we have some sympathy with property owners, would any of us like to see a whole lot more people living on the streets. What would that say about a society which is already  seen by many as crumbling in terms of social cohesion ?


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Challenge to disabled cuts ?

Charities may decide to join together to fight disability cuts

The Disability Alliance has given notice that it may seek judicial review of the Department for Work and Pensions (DWP) proposed cuts totaling some £2 billion to disabled people’s entitlements. Apparently, the judicial review application would be based on a legal argument that the proposed cuts breach the Equality Act, as the Government has failed to properly impact assess the effect of it’s cuts., said ministers had not properly assessed the negative impact of the benefit cuts.

According to the Disability Alliance the welfare reforms would disproportionately disadvantage over 500,000 disabled people and their families.

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World disability review

Worldwide disability update

The World Health Organization (WHO) and The World Bank have published some very interesting data about the difficulties and disadvantages faced by the estimated 1 billion disabled people with personal injury worldwide.

The report was  commissioned with a  view to promoting the UN Convention on the Rights of Persons with Disabilities which has been less than fully adopted, even by countries who could afford to do so.

Some interesting facts to come out of the report :-

  • 15% of people worldwide are disabled, which means more than a billion people.
  • disabled people worldwide are nearly 3 times more likely not to be able to obtain healthcare.

The report makes 9 major recommendations including :-

  • for each country to draw up a national disability strategy
  • disabled people should be involved in policy and laws affecting them
  • adequate funding should be allocated for disabled services
  • Steps to raise disability and public awareness
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Disability and public transport

Disability discrimination on public transport

As if the lack of appropriate adjustments to public transport systems is not bad enough, it seems that insult is being added to injury in that many disabled people who manage to use the public transport system suffer abuse.

In a survey commissioned by scope, some pretty disturbing results were obtained, including :-

  • Nearly 50% of people with disabilities advise that they have been abused by able bodied passengers
  • 15% say they encounter serious abuse.

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Disability cuts protest in London

11th May protest

As many readers will already know, a protest against the planned Government cuts and their effect on the disabled is planned for 11th May 2011 in Westminster. Frustration and not least anxiety are increasing especially given that there have been not less than  5,500 responses to  the Department of Work & Pensions “consultation” regarding the cuts, but it appears to many that the consultation is simply political “lip service” .

Among the most controversial proposed cuts are :-

  • Projections that in excess of  400,000 disabled people will have work support removed after an arbitrary period of 1 year. Statistics indicate that only 13% of disabled people were able to get work within a year even with support.
  • A staggering  80,000 disabled people who are care home residents will have mobility support removed.
  • Some 750,000 people will be affected by removal of the Disability Living Allowance (DLA) and replacing it with Personal Independence Payments which are projected to result in a  significant financial detriment to potentially around 200,000 disabled people of at least £80.00 per month
  • Reduction in council funding will inevitably impact on basic but vital services for local disabled services. It seems that only about 20% of councils in England will be providing greater support by the end of this year over and above critical or substantial needs.
  • Due to the cuts to Council funding, many councils have indicated that charges for disabled services will sharply increase

No wonder there will be a protest, but will it make any difference ….? For advice on disability rights or employment law, get in touch with solicitors.

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Fascinating application of DDA against HMRC

Disability Discrimination & bankruptcy

In a fascinating and radical application of the diability discrimination rules, in a recent case a woman suffering from a chronic mental illness which manifested, among other ways, in her having  a phobia of opening mail, had her bankruptcy annulled by the High Court under the Disability Discrimination Act 1995.

The woman had ignored the commercial law requirement to complete tax returns sent to her by HMRC due to her illness and the HMRC had assesses her liability in the absence of the legally required returns. Where HMRC  were found to have not made the necessary “reasonable adjustments” under the Act was by virtue of the fact after sending a statutory demand to the woman, it seems her mother opened this and then wrote to them explaining why no returns had been submitted. The Revenue ignored this and proceeded with a bankruptcy petition.

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Housing benefit, adapted housing and common sense

Housing benefit changes and disabled people

The implications of the stringent government cuts and the consequent impact on Housing Benefit are likely to effect disabled people very badly. Research indicates that over 100,000 disabled people living in specially adapted homes may have to In particular, the rules will impact on social homes with one unused bedroom which would lose up to 15% of housing benefit under the new rules, and up to 25% for two unoccupied bedrooms.

Surely the government should think again, not least because of the obvious, common sense due diligence point that if a disabled person living in adapted housing has to move, in many cases that person, if forced to move, will need to have their new property adapted in the same way at cost !

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