Welcome to Employment Edit, our regular update giving the pick of the key developments in employment law from the last couple of weeks:

  • Disability discrimination – The EAT has held in Land Registry v Houghton that an automatic disentitlement to a bonus following a series of warnings due to disability-related sickness absences amounted to unfavourable treatment arising from a disability. An element of discretion and flexibility in a bonus scheme that is linked to attendance is likely to be necessary to justify the bonus scheme as a proportionate means of achieving a legitimate aim.
  • Investigations – The Court of Appeal’s decision in Shrestha v Genesis Housing Association has made it clear that an employer does not have to investigate each and every line of defence that an employee puts forward in response to allegations of misconduct as long as the employer carries out as much investigation into the matter as was reasonable in the circumstances.
  • Review of tribunal fees – The Business Secretary, Vince Cable, has announced a review into the impact of employment tribunal fees and, in particular, whether they impose a barrier to justice. This follows the publication of statistics showing a drop of 70% in single employment tribunal claims for the period April to June 2014, compared to the same period in 2013. The findings of the review are expected to be published in a few weeks.
  • Enforced subject access requests – Section 56 of the Data Protection Act 1998 (DPA) is expected to be brought into force on 10 March 2015, to make it a criminal offence to request an enforced subject access request. This means employers will be prohibited from asking job applicants to request a copy of their criminal records in order to check whether they have any criminal convictions. This change does not prevent employers carrying out DBS checks for those jobs for which it is required or obtaining basic disclosure checks, so it is still possible to check for criminal convictions through these routes.