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LANDMARK RULING PUTS CARE LIABILITY ON COUNCILS

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An industrial tribunal decision that may have dramatic implications for every council in Britain has appalled disab...
An industrial tribunal decision that may have dramatic implications for every council in Britain has appalled disabled rights groups but delighted equal opportunities campaigners, reports The Herald (p14).

When Lorna Smith from Wishaw in Lanarkshire bought a sexual harassment case against a 37-year-old severly disabled man she had been caring for, both the man and his South Lanarkshire Council denied they were her employers.

But an employment tribunal has ruled the the council was Ms Smith's employer and therefore liable to pay compensation if she wins her case.

The decision has pleased the Equal Opportunities Commission, which sponsored the case. The commission's concern is that in the rush to get disabled people out of institutions, many of the new army of (largely young female) personal assistants being drafted in to look after them are not given proper protection and support.

'When a council provides money for these services, a personal assistant is as much a council employee as a secretary at their headquarters,' said Alice Leonard of the EOC.

The decision, based on sections of the 1996 Employment Rights Act and the 1975 Sex Discrimination Act, could have far-reaching implications for councils.

Some believe it will discourage local authorities from allowing more severly disabled people to manage their own care packages.

Sandy Cameron, the council's head of social work, said: 'We are currently studying the judgment and seeking council advice.'

Ms Leonard, head of legal and advice services at the EOC, says the decision is less about undermining the independence of disabled people than providing protection to a vulnerable group of mostly female workers.

'Our interest is in ensuring that service providers protect both those receiving the service and the workers involved. In this case South Lanarkshire Council had acted as Lorna Smith's employer in every relevant respect.

'It's up to them to make sure that a carer isn't harassed. Of course, disabled people can make their own decisions but it doesn't mean they are free to sexually harass those who assist them. We'd like to see councils give both groups appropriate support but many employers won't give that support unless they know that they have a liability,' she said.

Asked if the council provided training courses to teach disabled people about employing personal assistants and whether they paid their disabled clients' employers' liability insurance, a South Lanarkshire spokeswoman said: 'These are important issues that we are looking to be clarified through this process. In the light of the eventual outcome, we will look at decisions that need to be taken.'

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