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Reasonable adjustments when employment has ended?

Employment and Discrimination Law

Re: Reasonable adjustments when employment has ended?

Postby Scienke » Mon May 15, 2017 5:51 pm

8 months ago my autistic neice was offered a settlement from her then employer. The legal advice the union provided was in written form that came with the settlement agreement giving a brief and generic explanation of each clause in the settlement.

She was asked to read the 'advice' and sign the agreement if she felt she understood it.
If she felt that she didn't understand this written 'advice' she was invited to call a number and make a telephone appointment to speak to a solicitor over the phone for further guidance.

She thought she did understand it so she decided to sign the agreement without making further enquiries. It was only when her brother intervened and asked her a few questions did it become apparent that she had very little understanding of what she was signing.

In this situation no legal advisor would have had the opportunity to question her. She never even met one. She could have very easily signed her rights away for the price of a second hand Morris minor. Yet the 'advice' provided by the union would have been technically acceptable as it was my neices decision not to seek further clarification as she thought she understood when she didn't.

Quite how that is the employers fault is a separate issue that I probably shouldn't go into online but safe to say they did not cover themselves in glory and had she signed the deal and then breached a clause they may have been found to be partially at fault as they put her under totally unacceptable pressure to sign.

Anyway. I'm just explaining a scenario where it would not have been possible for a legal advisor to ascertain whether or not an employee understood what they were signing.
Last edited by Scienke on Mon May 15, 2017 6:47 pm, edited 3 times in total.
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Re: Reasonable adjustments when employment has ended?

Postby atticus » Mon May 15, 2017 5:53 pm

I question whether that erm "legal" advice met the reqoof the employment legislation. This is why legal advice should be given by lawyers.

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Re: Reasonable adjustments when employment has ended?

Postby blig » Mon May 15, 2017 6:02 pm

I question whether that erm "legal" advice met the requirement of the employment legislation


Tread with care: the requirement is simply that the advice is independent, not that it is from a lawyer. In practice many trade unions seek their own advice from a firm of lawyers, and it is the trade union that is the lawyers' client, not the employee.

The employee must have received advice from a relevant independent adviser, such as a lawyer or a certified and authorised member of a trade union.

Source: Acas - http://www.acas.org.uk/index.aspx?articleid=4395
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Re: Reasonable adjustments when employment has ended?

Postby Scienke » Mon May 15, 2017 6:23 pm

I don't think anyone with a recognised mental impairment should be asked if they understand something without being tested to see if they actually do understand.

If the employer knew that the employee had a mental impairment but still pressured them into making a bad decision then I see no reason why they shouldn't shoulder at least some of the blame if it all goes tits up and the employee starts breaching the agreement.

If the employer decided to sue then perhaps at this point a request for some sort of reasonable adjustment might be in order. Just as an example of how the duty might arise after the employment relationship has ended.
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Re: Reasonable adjustments when employment has ended?

Postby atticus » Mon May 15, 2017 7:38 pm

If that qualifies as such advice by such a person, the bar is set very low. Personally, I think the union is taking the p***.
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Re: Reasonable adjustments when employment has ended?

Postby Scienke » Mon May 15, 2017 7:48 pm

atticus wrote:If that qualifies as such advice by such a person, the bar is set very low. Personally, I think the union is taking the p***.


I fully agree. Sooner or later someone's going to test it out and maybe then we'll see if these penny pinching practices really do constitute proper legal advice.
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Re: Reasonable adjustments when employment has ended?

Postby Hairyloon » Mon May 15, 2017 8:13 pm

Was the union aware of the autism? Is it not they that should have made the reasonable adjustment?
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Re: Reasonable adjustments when employment has ended?

Postby Smouldering Stoat » Mon May 15, 2017 8:18 pm

Alice, Bob, Claire and Dave are all former employees of MegaCorp.

MegaCorp has a policy of supplying paper copies of former employees' references to them on request; but Alice cannot read a paper copy because she is partially-sighted. It may be a reasonable adjustment to send Alice a copy electronically so that she can use her assistive technology.

MegaCorp allows retired staff to use a Staff Discount Card. Normally this may only be usable by the retired staff member in person, but Bob cannot do this because he has a physical disability which means he cannot leave his house. It may be a reasonable adjustment to allow Bob's carer to do his shopping using his Discount Card.

MegaCorp's retired employees are invited to a slap-up nosh at which they are presented with a carriage clock. Claire has a philosophical belief that eating meat is wrong. It might be a reasonable adjustment to provide her with a vegetarian meal.

I submit these are reasonable adjustments.

Dave receives poor advice from his legal adviser, Eve, about a settlement agreement. That advice was not provided by his employer. Eve owes Dave a duty of care, and it is a requirement that Eve has insurance. MegaCorp doesn't know what advice Dave has received or whether it is appropriate, because Dave's advice is privileged. Why should MegaCorp not expect Dave to be bound by the contract he has entered into on the basis of that advice? If Dave has capacity to enter into the settlement agreement, then from MegaCorp's viewpoint, is that not the end of the matter? Isn't that one of the reasons why the employee is required to take advice, to protect both sides? We have well-established laws on capacity and undue influence, and surely that is one reason for making Dave take independent advice. See for example those cases where wives are pressed to guarantee her husband's debts (maybe by agreeing to a charge on the family home): the bank is protected if the wife takes independent legal advice, even if is poor: responsibility for giving poor advice rests on the advisor.

Dave does not wish to be bound by the settlement agreement. I submit that this would not be a reasonable adjustment.
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Re: Reasonable adjustments when employment has ended?

Postby Scienke » Mon May 15, 2017 8:29 pm

I agree smouldering stoat. It's not the employers fault if the employee recieves bad advice.

However, I do wonder what if any extra responsibilities may rest on the employer when they know they are offering a vulnerable and easily confused employee a legal settlement.
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Re: Reasonable adjustments when employment has ended?

Postby Scienke » Mon May 15, 2017 8:37 pm

Hairyloon wrote:Was the union aware of the autism? Is it not they that should have made the reasonable adjustment?


The union in this case appeared completely fractured and incapable of communicating with its own different departments. The workplace rep knew that she was autistic but the unions legal department who were dealing with the settlement agreement were not aware that they were communicating with an autistic person.
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