June 2019 bulletin

Welcome

A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to do day to day things. The Equality Act 2010 specifically excludes from the definition any visual impairment which is correctable by contact lenses or glasses. Sometimes, the correction of visual impairments can create side effects. The Employment Appeal Tribunal has recently looked at whether side effects can stop the impairment being correctable.

In Mart v Assessment Services, the employee brought a claim for disability discrimination based on her diplopia (double vision). She also had a facial disfigurement, which caused depression and anxiety, but she chose to limit her claim to the double vision. She was prescribed a contact lens which corrected the problem. However, the lens visibly blacked out her eye, which the employee said was a disfiguring side effect (disfigurement can also be a disability if it is ‘severe’). The lens also restricted her peripheral vision. For these reasons, the employee said the lens had not corrected her vision and she was therefore disabled.

The employment tribunal said that she was not disabled because the lens corrected the relevant impairment – her double vision. The anxiety and disfigurement issues were not relevant because she had specifically chosen not to rely on them. The EAT agreed. There might be cases where lenses corrected the problem but created another. A condition might not be ‘correctable’ in someone who cannot tolerate the lens, for example due to dry eyes or susceptibility to infection. In this case, although the lens affected the employee’s peripheral vision, it was not so significant that it stopped the lens being a practical solution to her double vision problem. There was also no evidence to suggest that her anxiety and depression was connected to the lens and stopped her from wearing it (and she hadn’t argued that in her case anyway).

The situation may have been different if the employee had relied on facial disfigurement as her impairment, with the lens forming part of that argument. Anxiety and depression can also be impairments. Any such conditions would have to meet the legal test for disability though and be specifically relied on in tribunal proceedings.

Parental leave

Hextall v Chief Constable of Leicestershire Police

The Court of Appeal has decided that it is not discriminatory for an employer to pay men on shared parental leave less than birth mothers on statutory maternity leave. The Court of Appeal looked at the issue in a series of joined cases, including Hextall v Chief Constable of Leicestershire Police. In all the cases, men claimed direct or indirect discrimination for being paid less for shared parental leave than a woman on maternity leave.

The special treatment women receive in relation to pregnancy and childbirth is a legal exception to the rules on discrimination. The Court of Appeal said that the correct comparator in a direct discrimination claim is a woman taking shared parental leave, not a woman on maternity leave. On that basis, there was no discrimination in these cases since men and women on shared parental leave would be paid at the same rate.

The Court went on to say that any claim relating to a contractual difference in pay between men and women should be brought as an equal pay claim, not an indirect discrimination claim. Any special treatment afforded to women in connection with pregnancy and childbirth is a defence to an equal pay claim, just as it is for direct discrimination. A man cannot get around the law by bringing an indirect discrimination claim on the same facts if he is prevented from bringing an equal pay claim because of the ‘special treatment’ exception.

The Court of Appeal pointed out that maternity leave is designed to protect a woman’s health and safety in late pregnancy as well as allow time to recover from childbirth and facilitate breastfeeding. These are things which affect the birth mother exclusively, not the father. Maternity leave isn’t just childcare and is different to parental leave by design.

Injury to feelings

Otshudi v Base Childrenswear

If a tribunal upholds a discrimination claim, they can award compensation. Compensation can include an amount for ‘injury to feelings’. There are guidelines about how much can be awarded for injury to feelings which stem from a case called Vento. There are three compensation brackets – most serious, middle and lower – to reflect the severity of the impact on the employee’s feelings.

In Otshudi v Base Childrenswear, the employee was dismissed out of the blue from a career that she had invested a lot of time and energy in and which she felt was long term. She brought and won her claim for discrimination relating to her dismissal. Her dismissal was a serious but isolated discriminatory act. The employment tribunal awarded £16,000 for injury to feelings, which fell into the middle compensation bracket. The employer appealed, saying that a one-off act of discrimination should fall within the lower bracket.

The Employment Appeal Tribunal disagreed. When calculating injury to feelings, the important question was ‘what particular effect did the discrimination have on the employee?’. The tribunal had been entitled to consider that the situation was serious. The EAT could not interfere with the award unless it was ‘manifestly excessive’. Based on the facts, it was not.

Employers should note that one off acts of discrimination are not necessarily less hurtful (or less costly) than a series of discriminatory acts, especially when the act is something as serious as dismissal. Employers should ensure that managers tasked with dismissal decisions are appropriately trained on equality issues.

Unfair dismissal

Kuteh v Dartford and Gravesham NHS Trust

Proselytising is where someone preaches about religion with a view to converting other people to that religion. The Court of Appeal has recently examined when a dismissal for proselytising can be fair.

In Kuteh v Dartford and Gravesham NHS Trust, the employee was a nurse who started conversations about her Christian religion with pre-operative patients. Several complained. The employee was told by her manager to stop initiating conversations about religion, which she agreed to do. However, she continued regardless. One patient said a pre-operative assessment where he was asked to pray and sing a Psalm was ‘like a Monty Python skit’. The employee was dismissed for gross misconduct following an investigation and disciplinary hearing.

The Court of Appeal upheld the employee’s dismissal. Although the right to freedom of religion under the European Convention on Human Rights gives individuals the right to express their religion freely, it does not legitimise improper proselytising. In this case, the employee had been warned about her behaviour, agreed to stop and yet continued. Some of the incidents, including the ‘Monty Python’ one, were clearly inappropriate. The employee had behaved inappropriately by improper proselytising and failing to follow a lawful instruction. She had been dismissed fairly because of her conduct.

The balance between allowing employees freedom to express their religion and protecting other people from improper proselytising can be a fine one. Employers should not shy away from addressing inappropriate behaviour but ensure managers follow disciplinary policies carefully.

Discrimination arising from disability

Baldeh v Churches Housing Association

Discrimination arising from disability happens when an employer treats an employee unfavourably because of something that arises because of their disability (and which cannot be objectively justified). However, an employer will not be liable if they didn’t know the employee was disabled and could not reasonably have been expected to know.

In Baldeh v Churches Housing Association, the employee was dismissed at the end of her probationary period due to concerns about her performance and behaviour. She appealed. At the appeal hearing she said her behaviour was caused by depression. Her dismissal was upheld by the employer and she brought a claim for discrimination arising from disability.

The employment tribunal rejected her claim. Among other things, they said the employer did not know about the disability at the time of dismissal. Therefore, the dismissal could not be discrimination arising from disability. The Employment Appeal Tribunal disagreed. The outcome of an appeal against dismissal is an integral part of the overall decision to dismiss. The employer did know about the disability at the time of dismissal if they were told about it at the appeal stage. The case was sent back to a new employment tribunal to consider afresh.

Employers should ensure that information on disability which emerges at any appeal stage is dealt with properly. The appeal process might become longer and more drawn out as a result. However, if the alternative might be tribunal proceedings, it is worth taking the extra time.

Working time

CCOO v Deutsche Bank

The Working Time Regulations 1998 stem from European law, the Working Time Directive. The Regulations put limits on the number of working hours a worker can do in a week. They also specify a minimum amount of paid annual holiday for workers as well as daily and weekly rest requirements.

Regulation 9 requires an employer to keep ‘adequate’ records to show they are sticking to the 48-hour weekly working limit, and to protect night workers. The Health and Safety Executive guidance says employers do not need to create specific ‘working time’ records. They can use existing systems to monitor working hours, such as systems relating to pay.

In CCOO v Deutsche Bank, the Court of Justice of the European Union (ECJ) said that Member States must require employers to set up organised systems to accurately measure working time in order to comply with the Working Time Directive. These systems must be objective, reliable and accessible. The ECJ said that without such systems, workers could not ensure their rights were being complied with.

This case casts doubt on whether our current rules on record keeping comply with the Working Time Directive. This is because the rules do not specifically require all daily and weekly hours of work to be recorded. Employers should watch this space to see what additional guidance is given by the HSE and the courts in future.

Disability Discrimination

Owen v AMEC

It is direct disability discrimination if an employer treats an employee less favourably than other people because of their disability. In a direct discrimination claim, an employee must show they have been treated less favourably than a real or hypothetical comparator whose circumstances are not materially different to theirs. This ensures that the tribunal is comparing like with like, aside from the disability.

In Owen v AMEC, the employee had multiple health issues, including double below-knee amputations, type 2 diabetes, heart disease and hypertension. He had already had a heart attack. He was offered a post in Dubai and was sent for a medical assessment. The doctor raised concerns about the posting abroad due to the employee’s health issues. There was evidence that the UAE medical facilities and high temperatures might increase the employee’s health risks. The employer would not allow him to take up the job. The employee brought claims for direct and indirect disability discrimination and failure to make reasonable adjustments.

The Court of Appeal said the employee had not suffered discrimination. The correct hypothetical comparator in this case was a person who was advised that they were at high risk of needing medical assistance if posted abroad but who did not have the employee’s disabilities. That person would have been treated the same as the employee. It was not direct discrimination. The Court also said that the requirement to pass a medical examination was objectively justified because it ensured that people who work abroad are fit to do so and not exposed to additional health risks. The Court also agreed that there weren’t any reasonable adjustments that could have been made to avoid the disadvantage of such a medical assessment to the employee.

This case shows that a person’s health will not always be irrelevant to the job. The employee in this case has applied for permission to appeal to the Supreme Court. We will keep you updated on any developments.

And finally…

According to a recent survey of 1000 vegan employees and 1000 employers, almost half of vegan employees have felt discriminated against by their employers. 31 per cent said they had felt harassed at work or treated unfairly due to their veganism. The survey also revealed that almost half of employers did nothing to accommodate their vegan employees. The results suggested that employees were encouraged to keep their views to themselves and to fit in at company functions which had limited menu choices.

In October 2019, an employment tribunal will decide whether ethical veganism can be a philosophical belief under the Equality Act 2010. The overwhelmingly likely answer is yes (whether or not that individual wins any discrimination claim). Negative comments about vegans should be just as socially unacceptable as negative comments about someone’s race or gender.

Even if veganism were not capable of being a philosophical belief, tolerance and respect are integral to a healthy workplace. Veganism is a growing trend, both for philosophical and health reasons. More and more employees in more and more workplaces are choosing a vegan lifestyle. It makes business sense to approach veganism as standard rather than alienate a growing group of potential talent. Don’t wait for the judgment to take any necessary action.

About David Parry

David graduated with a Law with French degree from Leicester and Strasbourg Universities. He qualified as a solicitor in 1989 and has specialised in employment law ever since, first at Cole & Cole (now Morgan Cole) then at Mallam Lewis & Taylor who merged with Darbys in 1999. David became a partner in 1995. Until 2013, David was the Head of the Employment Team at Darbys that became one of the best-regarded in Oxford and the Thames Valley. Contact David now

Employment law for businesses

David Parry’s approach to employment law is understanding, pragmatic and cost-effective. He helps all types of businesses to achieve the best outcomes at the right price. With decades of experience David is a highly credible and trustworthy employment lawyer. He is friendly, professional, open and honest, and will work closely with you to help overcome your legal challenges.Read more ...

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