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Chapter Updates Chapter 15 Disability The Government has issued revised guidance on the meaning of ‘Disability’. The guidance entitled Guidance on Matters to be taken into Account in Determining Questions to the Definition of Disability, can be found at www.drc-gb.org. Policy The Government has published its proposed policy to enhance the protection of vulnerable workers – Success at Work; Protecting Vulnerable Workers; Supporting Good Employers (www.dti.gov.uk). The Government intends to enhance paid annual leave, simplify the law on written particulars of employment, review discrimination law and statutory redundancy scheme. The revised code of practice on racial equality and employment has now been introduced – www.cre.gov.uk/downloads. A draft code of practice on gender equality duty under the Equality Act 2006 has been published. The code of practice will give guidance to public authorities on meeting their new gender equality duty which will cover gender discrimination, sexual harassment and pregnancy and maternity. Public authorities will be expected to produce a strategy and action plan as well as monitoring and reviewing progress on their policies; they will also be expected to review equal pay policies and introduce measures to address promotion development etc. The Women and Work Commissions Report on Shaping a Fairer Future (www.womenandequalityunit.gov.uk) contains recommendations on closing the gender pay gap. The focus is on ways to bring out a cultural change rather than changes to the legislation. Age Discrimination ACAS has published guidance for employers on implementing the Employment Equality (Age) Regulations 2006 (SI2006/1031). The guidance recommends areas of good practice including the removal of any reference to age or date of birth from application forms and recruitment and advertising; the monitoring of age profiles in order to ascertain whether a particular group are under represented as positive action may be possible; a review of all policies and procedures relating to equality to ensure that the legislation is taken into account. October 2005 Equal Pay 1. Different hospitals in the same trust are not necessarily part of the `same establishment’ for the purposes of an equal pay claim (s1 (6) and Art 141). As a result, male portering staff at one hospital were not in the same employment as female ancillary workers at another hospital. A single body or source could not be found to be responsible for equalising terms and conditioners – Armstrong & Others v Newcastle Upon Tyne NHS Hospital Trust (2004) EAT/0158/04) 2. It should be noted that there is no compensation in equal pay claims for non-economic loss, i.e. injury to feelings, exemplary or aggravated damages, because such claims are based in contract, not tort. – Council of the City of Newcastle upon Tyne v Allan & Others; Degnan & Others v Redcar and Cleveland Borough Council [2005] IRLR 504. 3. The Court of Appeal in Bailey & Others v Home Office [2005] IRLR 369 has clarified the position regarding the circumstances when an employer must establish a genuine material factor defence. The Court of Appeal held that the employer is required to establish such a defence in all situations, where a prima facie case of sex discrimination is established. The requirement is not confined as had been previously decided, to cases where there was a gender neutral requirement or condition which was found to have an adverse impact on a greater proportion of women than men. Furthermore a prima facie case can be established where the statistics show that the proportion of disadvantaged men compared with disadvantaged women when expressed as a ratio maybe significant enough to establish the case. 4. As a result of the decision in Igen Limited & Others v Wong; Chamberlain Solicitors & Another v Emokpae; Brunel University v Webster [2005] IRLR 258, the Court of Appeal has revised the guidelines on establishing the burden of proof laid down in Barton v Investec Henderson Crosthwaite Securities Limited. In revising the guidelines it is clear that the tribunals must go through a two stage process, which will involve considering the facts and determining whether discrimination can be inferred. If it can, the burden of proof then passes to the employer to offer a reasonable explanation for their actions and for the tribunal to determine whether the explanation is sufficient to discharge the burden of proof. The claimant must also establish that not only has there been an unlawful act of discrimination but that the employer committed the act. Finally Barton requires the employer to establish that there was no discrimination what so ever. 5.In Elsner – Lakeberg v Land Nordrhein – Wesfalen [2005] IRLR 209 a regulation which provided that both part time and full time teachers should not receive any remuneration for additional hours worked when the additional work does not exceed three hours per calendar month, was found to be contrary to article 141 and the Equal Pay Directive as it affected considerably more women that men. Although in this case the requirement was applied to both full and part time staff, ‘the three additional hours was in fact a greater burden for part time teachers than it was for full time teachers’.
6.Further support for the decision in Lawrence v Regent Office Care Limited [2002] can be found in Robertson & Others v Department for Environment Food & Rural Affairs [2005] IRLR 363. In this case six male civil servants working for DEFRA brought an equal pay claim comparing themselves with Personal Secretaries in the Department of the Environment, Transportation & the Regions. The Court of Appeal held that although all civil servants are employed by the Crown, Article 141 requires pay and conditions to be attributed to a ‘single source’. As pay and conditions of civil servants are not negotiated or agreed centrally on a civil service wide basis there was no single source responsible, even though there was common employment by the Crown. Sex/Race Discrimination 1. Where an employer introduces a requirement which is intended to be an act of positive discrimination, he may still be in breach of discrimination law. In Nikoloudi v Organismos Tilepikinonion Ellados AE (March 2005, C-196/02) a rule which stated that only women could be appointed as part-time cleaners whilst not direct discrimination, could amount to indirect discrimination where benefits, including pay were calculated on the basis of length of service which discounted periods of part-time employment. 2. An honest attempt by an employer to settle an equal pay claim pending proceedings by writing to each claimant did not amount to victimisation even though it caused distress to some of the claimants – St Helens MBC v Derbyshire & others [2005] EWCA (Civ) 977. 3. In attempting to justify an act of indirect discrimination, the `range of reasonable response’ test as applied in unfair dismissal cases, should not be used in discrimination cases which require objective justification– Hardys & Hansons plc v Lax [2005] IRLR 726 4. Tribunals are not required to draw inferences of discrimination. If there is no evidence from which to draw an inference or the evidence is insufficient then the tribunal is obliged to say that it is not drawing an inference and provide an explanation why this is the case on the particular facts; so held the Court of Appeal in Madden v Preferred Technical Group CHA Limited [2005] IRLR 46. Furthermore the hypothetical comparator need not be an exact clone of the applicant 5. The Court of Appeal ruled in Bahl v Law Society [2004] IRLR 799 that unreasonable treatment alone is not sufficient to raise a presumption of discrimination, even if there is nothing else to explain it. The employer does not have to show that there is equally unreasonable treatment of all to avoid an inference of unlawful discrimination Harassment 1.To bring a claim under the Protection of Harassment Act 1997, the complainant must show that the misconduct/harassment has occurred on at least two occasions, i.e. there has been a course of conduct – Banks v Ablex Limited [2005 EWCA (CIV 173)]. 2. However, under the Protection of Harassment Act 1997, it is possible for an employer to be vicariously liable for harassment of third parties where the act is committed by one of his employees and is in the course of employment. The Court of Appeal held that although the Act does not specifically provide for vicarious liability, it can be inferred – Majrowski v Guy’s & St Thomas NHS Trust [2005] EWCA (CIV) 251]. . There is little doubt that the decision in Moonsar is the preferred approach. However, if the applicant’s claim in Moonsar were to be lodged now, it would not be allowed to proceed as a result of the Dispute Resolution Regulations 2004, as she would have been required to make a complaint in writing to the employer before making a complaint to the Employment Tribunal.
Disability Discrimination 1. Where a dismissal based on misconduct is also found to be disability related, it is open to the employment tribunal find that the dismissal is discriminatory – Claydon House Limited v Hamilton – Bradbury (Oct 2004 EAT/0315/04). 2. Where an employer has committed an unlawful act of discrimination, liability for this is not overridden by a second wrongful act, such as unfair dismissal. In effect the employer has committed two separate wrongs against an employee and damages will be accorded to each element – HM Prison Service v Beart (2) [2005] EWCA (CIV 467). The committal of a second act does not break the “chain of causation”, as to accept that it did would result in a gross injustice to the victim.
3. One of the last cases to consider the justification defence under the DDA 1995 before it is removed is Williams v J. Walter Thompson Group Limited [2005 IRLR 376]. The employer was found to have discriminated against a blind employee, in failing to provide her with specialist equipment and the training necessary for her to do her job. The employer was aware of the disability but did very little to accommodate the employee. She left her employment after two years, claiming constructive dismissal. The employer attempted to justify the lack of support on the basis that the financial costs of making the adjustments were prohibitive. This was not accepted by the Court of Appeal. In effect the employer had failed to fully assess the range of options and cost involved at the point when employment was offered.
4. The amended definition of disability to include aggressive conditions, such as multiple sclerosis, HIV and cancer from the point of diagnosis will come into force from December 2005. March 2003 Page 460 Paragraph 15.3.1: The decision of the EAT in Lawrence has to be read in the light of the ECJ decision, which permits such a comparison unless the differences in the pay conditions cannot be attributed to a single source – Lawrence v Regent Office Care Ltd [2002] IRLR 822. Page 470 Paragraph 15.4.2: Protection is also extended to fixed term employees as a result of the Fixed Term Employees (Prevention of Less Favourable Treatment) Regulations 2002, which came into force on 1 October 2002. Page 476 Paragraph 15.5.3: An employee may remain personally liable for acts of discrimination even though the employer has established a defence under ss 42 and 32 – Yeboah v Crofton [2002] IRLR 634. Page 479 Paragraph 15.5.4: Post-operative transsexuals are deemed to be members of their chosen gender for employment purposes, unless the public interest outweighs that of the individual concerned – A v Chief Constable of the West Yorkshire Police and Another [2003] IRLR 32.
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