i) An employer has a duty to make reasonable adjustments to help a disabled employee in certain circumstances. An employer who operated a sickness policy which provided that action may be taken against an employee if their level of absence exceeds a specified threshold, was under a duty to make adjustments to the policy where the employee’s disability made them more likely to be absent from work than non-disabled colleagues.
ii) Until now the test to determine whether a contractual clause is a penalty (and therefore unenforceable) has been whether the sum claimed on breach exceeds a genuine pre-estimate of loss by the innocent party. The Supreme Court has revisited this and has clarified that the test should be whether the detriment imposed on the contract-breaker was ‘out of all proportion to any legitimate interest of the innocent party’. Accordingly, the mere fact that the detriment may exceed any genuine pre-estimate of loss is not determinative of whether or not there is a penalty (although it may remain relevant in certain cases).