Seminars

Our next Employment Law Updates are being held in Glasgow and Edinburgh next week, in Aberdeen on 3 February and in Manchester on 23 February. Click here for details and to register.

Equality Focus

DDA – meaning of 'long term'
Patel v Oldham Metropolitan Borough Council
A person is disabled within the meaning of the DDA if he/she has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.  An impairment has a long term effect if it:

• has lasted or is likely to last for at least 12 months; or
• is likely to last for the rest of the life of the person affected.

But what happens when a person suffers from an impairment which leads to a different impairment?  Can a claimant add both periods of impairment together in order to satisfy the 12 month requirement?  The EAT has ruled on this point in the case of Patel v Oldham MBC.

Mrs Patel (P) was a teacher who suffered a mild myelitis (inflammation of the spinal cord) from February until December 2005.  By January 2006 she had developed a secondary myofascial pain syndrome (painful muscular trigger points) in her leg.  After long periods of absence P was eventually dismissed on capability grounds.

P's claim for disability discrimination was dismissed on the grounds that she did not qualify as disabled.  The Employment Judge held that P had suffered two periods of physical impairment which had a substantial adverse effect on her.  However, the medical evidence was that neither impairment lasted, or was likely to last, for at least 12 months.  On that basis, the Employment Judge held that her impairments did not have a long term effect and that she was not protected by the DDA.

The EAT held that the Employment Judge had been wrong to dismiss the claim.  It held that the effect of an illness or condition likely to develop or which has developed from another illness or condition forms part of the assessment of whether the effect of the original impairment is likely to last or has lasted at least 12 months.  The case was remitted to Tribunal to determine whether the second impairment had developed from the first and whether the 12 month threshold had been met.

Comment
Consecutive impairments will be aggregated where the first impairment has led to or is likely to the lead to the second impairment.  This will be a question of fact to be determined through medical evidence.  Interestingly, P was refused permission to add a second point to her grounds of appeal.  She sought to argue that both impairments were, in fact, one single impairment.  The EAT indicated that, had it been able to consider that argument, it may have held that two closely related sequential impairments could be treated as one impairment.

News

Tribunals to share public interest disclosures with regulators
Under new regulations, Tribunals can refer public interest disclosure cases to the relevant regulator. ET1 forms are to be amended so that the Claimant can consent to the passing of information about the disclosure to the regulator. The change will apply across the UK with the exception of Northern Ireland to any revised ET1 form containing an accepted public interest disclosure claim received on or after 6 April 2010. Revised ET1 forms are currently being approved and are due to be published on the Employment Tribunals website on 5/6th April.

Comment
Little change appears to have resulted from the consultation process on this issue. Whether it will result in lots of referrals remains to be seen. Tribunals will not be obliged to make such referrals, but will have the option to do so.

Stonewall produces results of top 100 gay-friendly employers
Stonewall, the charity which works for rights of lesbians, gay men and bisexuals, has announced its sixth annual list of top employers - with IBM UK & Ireland coming in first place.

The process involves completion of a 25 question survey designed to measure equality for lesbian, gay and bisexual (LGB) people.  Stonewall also asked employers taking part in the survey to seek feedback directly from their LGB staff.  Over 7,200 LGB employees from 273 organisations provided anonymous feedback on their employers.

Key findings include that employees who feel able to be open about their sexual orientation are significantly happier than those who do not.  However, it is clear that there is still work to do for employers to ensure that their organisations are fully inclusive.  Stonewall cite a lack of diversity training on LGB issues, adequate monitoring, active role models and specific training for line managers.

Comment
Employers will be aware that the Employment Equality (Sexual Orientation) Regulations 2003 protect employees from discrimination (both direct and indirect) on the grounds of sexual orientation.

By way of recap, direct discrimination is where, on grounds of the person's sexual orientation, the employer treats a person less favourably than it treats or would treat others.  Indirect discrimination occurs where the employer applies to an employee a provision, criterion or practice that the employer would apply equally to others but which puts members of the employee's protected group (and the employee) at a particular disadvantage. Indirect discrimination (but not direct discrimination) can be justified by the employer if it is a proportionate means of achieving a legitimate aim.

Implementation of an Equal Opportunities policy and provision of relevant equality training will assist employers in defending accusations of discrimination.  That said, employers should exercise caution when monitoring the numbers of lesbian, gay, bisexual and transsexual employees in their workforce.

Employers should:

• only monitor such information after full consultation with employees has taken place and adequate policies have been set out;
• make employees aware of the reasons for monitoring and what will be done with the results; and
• ensure that all information is kept confidential and is not shown to those making recruitment decisions or any interview panels.

Recent Cases

Tribunal Hearing in claimant's absence during Ramadan – not a breach of Article 6 ECHR
Khan v Vignette Europe Ltd  
Mr Khan (K) was dismissed for gross misconduct for viewing pornography at work.  He lodged numerous claims at Tribunal and the initial hearing had to be re-arranged.  Parties were written to in May relisting the hearing for September and asking them to notify any unavailable dates.  No initial objection was raised.  K later made two adjournment applications, both of which were rejected.  Midway through the hearing, K made a further adjournment application - he wanted to enjoy a "period of mental and spiritual purity during Ramadan".  The Tribunal rejected this application on several grounds:

• K had known for at least a year, to within a day or two, when Ramadan would be and had not objected to the proposed dates for the hearing;
• The Tribunal was confident it would be able to manage the hearing so that evidence relating to the pornography would not be dwelt on in a 'disproportionate or prurient' manner; and
• Articles 6 and 14 of the ECHR were not "trump cards" but factors to be weighed when exercising their discretion.

The Tribunal balanced the above against the employer's right to a fair trial within a reasonable time, and the public interest in bringing litigation to a close, and concluded that no adjournment should be granted.  The rest of the hearing was conducted in K's absence and his claims were dismissed.  K appealed to the EAT on the basis that the failure to adjourn meant he was denied a right to a fair trial under Article 6.  However, the EAT identified no error in the Tribunal's approach or reasoning and found that the decision was reached after careful balancing of all the relevant factors.

Comment
The Tribunal had accepted K's religious views as genuine and had regard to them in reaching its decision which was based on the facts put forward when K first raised the objection.  The EAT refused to admit fresh expert evidence, put forward by K, on the nature and obligations of Ramadan.  The EAT found that the Tribunal had been correct to observe that the need to respect K's religious views and right to a fair trial were not "trump cards" but "simply important factors to be considered" when a Tribunal decides whether to exercise its discretion.

Employer wins annual leave "use it or lose it" case
Lyons v Mitie Security Ltd
Mr Lyons (L) was a security officer.  He was required to give one month's notice of intention to take annual leave.  Three weeks before the end of the holiday year, L asked to take his outstanding holiday for the year.  His request was rejected because he failed to comply with the month's notice requirement.  As his contract provided that holiday could not be carried over, his untaken holiday for that year would be forfeited.  L resigned and claimed constructive unfair dismissal.  The Tribunal rejected L's claim. 

In upholding the appeal, the EAT said the right to statutory leave is subject to notice requirements and although those requirements must not be operated by an employer in an "unreasonable, arbitrary or capricious way" failure to give sufficient notice "could result...in the loss of the right at the end of the leave year in respect of leave not taken".

The case has been remitted back to a different Tribunal for a rehearing.

Comment
As the end of a holiday year approaches, employers can often find it more difficult to accommodate requests for annual leave without compromising on business needs.  This case gives encouragement that an employer might reasonably refuse requests on that basis but also highlights another perhaps unintended consequence of the provisions of the Working Time Regulations, which clearly prevent the carry over or buying out of statutory annual leave. This does not conflict with Stringer where there is a mechanism which allows for leave to be taken, which was the case here.