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Good morning and welcome back to your weekly case law update. Last time we looked at age discrimination, sex discrimination and equal pay in changes to employee pensions. This week, to complete the discrimination bingo card you all keep, we have a case on disability discrimination.

This case focuses on knowledge of disability. Section 15(2) of the Equality Act 2010 states that an employer cannot discriminate against a person if the Employer can show they did not know, or could not reasonably have been expected to know, that the person had a disability.

The knowledge can be actual or constructive. An employee might not disclose they are paraplegic but if the employer witnesses the employee using their wheelchair then the knowledge will be constructive.

With that in mind, today’s question is:

If an Employer has an erroneous occupational health report stating that an employee is not disabled, do they have knowledge of the employee’s disability?

Donelien v Liberata UK

The Claimant, Ms Donelien, worked as a Court Officer for Liberta UK, the Respondent. The Respondent is in the business of outsourcing services for organisations. The Claimant prepared Council Tax and Housing Benefit cases for Court on behalf of Southwark Borough Council.

The Claimant reported feeling tired and having low energy levels due to having high blood pressure. This also caused dizziness and breathing difficulties. After a period of sickness due to this the Claimant said she thought the condition was work related due to high workload and low resources

After a further period of absence, the Claimant’s GP recommended a phased return to work to ease the stress which was accepted. After another period of absence, the Respondent referred the matter to an occupational health consultant.  The Claimant refused to allow Occupational Health to contact her GP and was very confrontational in her meetings with the GP.

The Claimant then suffered further stress related illness and was ultimately dismissed. Despite her condition worsening the OH Report wrongly stated the Claimant was not disabled, largely due to being unable to obtain much medical evidence. She bought disability discrimination claims before the ET and the ET held that the Claimant was disabled for her final two months of employment but the Respondent was not to know.

The Claimant appealed and the EAT rejected the appeal. It agreed with the ET and so the Claimant appealed to the Court of Appeal. The CoA dismissed the appeal. It held that despite the false OH report the Respondent had also conducted return to work interviews and had GP notes as well as the Claimant’s unproductive attitude meant the Respondent had done all it could to determine disability and could not reasonably have known the Claimant was disabled.

The takeaway point:

If the OH report isn’t the only factor that the decision is based on, no. If the Respondent has taken steps to determine disability and all of these have led to them forming an opinion that the employee isn’t disabled then the erroneous report isn’t the only factor and the Respondent could not have reasonably known.

Feedback of the week:

Last week we did our first feedback of the week section. This week’s feedback is for a client who saw Liam for a settlement agreement.

“I saught PJH laws (sic) services at the end of last year regarding an extremely stressful work matter. I was initially very worried that it would only add more stress, but that was quickly alleviated by Liam, who dealt with the matter very swiftly and successfully. Any preconceptions I had about solicitors are now gone, thanks to Liam’s extremely personal approach. His human approach combined with exceptional professionalism made the whole ordeal manageable and allowed me to move forward with my career. Huge thanks again to Liam, he’s a top bloke and I’m extremely grateful.”

The post Donelien v Liberata UK appeared first on PJH Law.

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Hello, another Friday is upon us which means it is time for another dose of employment law. After last week’s employment law update we are back to our case law update. This week’s case concerns pensions and discrimination. We also have a new feature for you at the end of today’s update. (Cue dramatic music and mood lighting.)

Section 13 of the Equality Act 2010 says the following:

(1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats, or would treat, others.

(2) If the protected characteristic is age, A does not discriminate against B if it can show A’s treatment of B to be a proportionate means of achieving a legitimate aim

For example, if the Government introduced a policy to tackle youth unemployment by encouraging employers to take on younger people then it would be unlikely to considered discriminatory if the percentage of younger successful applicants suddenly became significantly higher than other age applicants because it was to achieve the aim of reducing youth unemployment.

The Lord Chancellor & Secretary of State for Justice v McCLoud & Ors

The questions in this week’s case are:

  1. Do changes to pension provisions that protect employees within 10 years of retirement directly discriminate against younger employees?
  2. Do changes to pension provisions indirectly discriminate against female and BAME employees if they are predominately in the younger category?
  3. Can changes to pension provisions that protect older employees lead to Equal Pay claims if female employees are predominately in the younger category?

The Claimants, including Ms McCloud, were judges appointed by the Lord Chancellor, the Respondent, to work in Her Majesty’s Courts. Following changes to the way pensions were calculated, younger judges would now receive smaller pensions than older judges.

The reason pensions were reformed were as part of changes to public sector pay. Following the Hutton Report – not the one that investigated the mysterious death of a whistle-blower who raised concerns about the evidence used to justify the invasion of Iraq –  it was recommended all public sector pensions were reformed to make them more sustainable.

As part of this reform, the Respondent made changes to the way Judge’s pensions were calculated and taxed. Judges within 10 years of retirement were protected from the reforms and their pensions were ring fenced meaning they would suffer no financial detriment.

The Claimants argued that this was discriminatory because the protection of older judges was not a legitimate part of making pensions more sustainable. The Respondent countered that it was in line with uniform reforms across the public sector.

The Claimants initiated an ET claim for age discrimination and also brought claims for indirect discrimination for sex and race as female and BAME judges were mostly younger judges. An equal pay claim was also piggy-backed in as younger female judges receiving inferior pensions meant they received worse pay than their male counterparts.

The ET allowed the claim and the Respondent appealed. The EAT rejected the appeal because the Respondent had failed to show that the changes to pension provision only impacting younger employees was a proportionate means of achieving a legitimate aim.

The takeaway point:

In this case, yes, changes to pensions that only impact younger employees can be discriminatory. In this case it also created sex and race discrimination issues due to the demographic of stale, male & pale older employees.

Lots of companies are changing the way their pensions are calculated at the time of writing as several employers, including BT, have large pension deficits and this case shows that employers need to tread carefully to not discriminate against younger staff when implementing any changes.

Feedback of the week:

Last year we changed how we obtained feedback from clients when their files were closed. Instead of filling out a survey that results in meaningless statistics we now obtain more qualitative feedback, this can be found in the testimonial section of our website.

Every week we will now be sharing some feedback from clients to inform readers of the work we are doing. Our inaugural choice comes from a client who Sam helped with a settlement agreement and their shareholdings:

“HI, I contacted PJH Law to receive advise (sic) on an employment matter, I have to say from the 1st call to the follow up email, the service has been fantastic. Sam and her team treated me with respect and resolved all questions quickly and efficiently. Thank you very much!”

The post The Lord Chancellor & Secretary of State for Justice v McCLoud & Ors appeared first on PJH Law.

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The effective date of termination (EDT) is the date when the employee’s continuous employment ends. This can be either the end of their notice period or, the date that the employee was summarily dismissed without notice. The employee has 3 months less a day from the effective date of termination, plus any period of ACAS Early Conciliation, which effectively stops the clock – to bring an unfair dismissal claim before the Tribunal.

The question in today’s case is:

When an employee is given notice after they have been summarily dismissed, does that move the effective date of termination (EDT) from the summary dismissal date to the end of the notice period?

Cosmeceuticals Ltd v Parkin

Ms. Parkin, the Claimant, was the Managing Director of Cosmeceuticals Ltd, the Respondent. The Respondent had concerns about her performance and that the Claimant, who held the most senior role below Board Level, was not visible enough within the office.

The performance issues and lack of visibility stemmed from the Claimant having difficult personal circumstances at home. It was agreed she would take a two-month paid sabbatical. During this sabbatical, the Respondent’s concerns over performance increased. The Respondent told the Claimant that she would not be returning to work on 1st September. She was then put on garden leave and served notice, which would expire on 23rd October.

The Claimant submitted an unfair dismissal claim more than 3 months after 1st September but less than 3 months from 23rd October. The Respondent argued the Claimant was summarily dismissed on 1st September and that her claim was out of time because it was more than 3 months after the EDT. The Claimant held the EDT was when her notice expired on 23rd October and the claim was in time.

The ET found that the Claimant’s EDT was the latter date when her notice expired and the claim was within time. The Respondent appealed and the EAT accepted the appeal. It held that the EDT was 1st September as that was the date of summary dismissal, albeit that such a dismissal was by conduct that is the Claimant was removed from the post. The Claim was therefore bought out of time.

The takeaway point:

No, the date of the employee’s summary dismissal is the effective date of termination, even if the dismissal is by conduct that is removed from the position. This applies even if the employer should have given notice but failed to do so, or, in this case, served notice after dismissal. An interesting case but one that could have been avoided had notice not been served after the date of dismissal. The one point that does not seem to have been argued is that if the Claimant was dismissed on 1 September, under the rules on calculating service her service in employment ran to 23 October. It does not seem satisfactory to have a service date for EDT purposes that is different to the service date for continuous service purposes.

The post Cosmeceuticals Ltd v Parkin appeared first on PJH Law.

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Ms Coffey, the Claimant, was a police officer for the Wiltshire Constabulary. During a medical, she was found to have suffered hearing loss and tinnitus but was allowed to remain employed after passing a functionality test. She was not considered disabled for the purposes of the Equality Act.

The Chief Constable of Norfolk v Coffey

The Claimant then applied for a position at the Norfolk Constabulary, the Respondent. She disclosed her hearing problems and was found to have hearing levels below the recruitment standard. The Respondent’s medical advisors believed that despite being below the normal hearing level for recruitment, the Claimant was still capable of passing the practical test and performing the role.

The medical team also noted that the Claimant’s hearing had not deteriorated in the two years between being diagnosed with hearing loss and applying at the Respondent. Despite this, the Respondent rejected her application supposedly because the Claimant’s hearing was below the recruitment standard level.

The Claimant believed this was because the Respondent perceived her to be disabled and this might cause strain on the Respondent’s resources, she initiated ET proceedings for direct discrimination. The ET held that the Respondent had rejected the Claimant’s application because they perceived her hearing loss to be a disability that could not be improved by reasonable adjustments, or, they feared she would become disabled (deaf) during the course of employment. This amounted to direct discrimination.

The Respondent appealed. The EAT rejected the appeal. It held that perceiving someone to be, or potentially becoming, disabled and not offering them a job because of that perception is discriminatory behaviour.

The takeaway point:

Yes, this is clearly discriminatory. Employers need to be careful that an applicant who suffers from a medical condition that is not a disability isn’t rejected for employment because the employer perceives it is or disability, or, might become one in the future. Further medical reports usually address any concerns employers may have about progressive conditions.

The post The Chief Constable of Norfolk v Coffey appeared first on PJH Law.

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Phil Neville: The FA’s latest PR Disaster

Good morning. As we move into February, January is a mere speck in the rear-view mirror -hooray. So long perpetual darkness and cold weather, ye shan’t be missed! Last week, our case law update looked at the effective date of termination, this week, we have our round-up of all things employment law that have happened this month. For those of you who missed it, our employment law forecast was made at the beginning of January.

Last year, the Football Association attracted a lot of criticism – and landed itself in front of a Parliament Select committee – for the handling of a complaint of race discrimination and subsequent revelations about the manager’s inappropriate relationships with players in a previous job.

You’d think this experience would mean the FA were cautious before making their next appointment to avoid any further furore? Well in theory they were.

Given the FA turned a blind eye to the previous manager’s impropriety for over four years, it seemed that background searches and personal character would be just as important as other factors, like experience and knowledge of the women’s game, when choosing a successor. Indeed, this led to many front runners dropping out due to fears of unwarranted scrutiny of their personal life and past.

However – in true English FA style – this meant that all the preferred candidates, who had experience of coaching successful women’s club and national teams, were now not interested. It seemed the opportunity to coach the third best team in the world was not worth the risk and the FA were running out of options. Step forward Phil Neville.

Despite not applying for the job, Neville was allegedly approached after being suggested as a joke at an FA Christmas party. Neville had a successful playing career for Manchester United and Everton, had stints as an assistant coach at both Manchester United and Valencia, both of which resulted in disastrous results, and his only experience as a manager was a one game spell at Salford FC, a team he co-owns. Appropriate experience? No.

Neville also has no real ties to women’s football. Having never played (obviously) or coached a women’s team and only doing pundit work for men’s football. This lack of knowledge wasn’t helped by calling the players, ‘a great bunch of girls,’ during his first interview. Additionally, in 2014, there were several complaints to the BBC that he was too boring to commentate on games. Ouch. Knowledge of the women’s game? None.

So, having not met two key criteria in recruitment and being deemed a stick-in-the-mud by the public, surely this appointment was due to Neville being a safe pair of hands who won’t get broiled in controversy? Whoops. No. (Like Theresa May’s younger footballing brother)

Less than 24 hours after being appointed, it appeared that social media posts existed where Neville had made several sexist comments, including making light of domestic violence and stating women should be in the kitchen and taking the kids to school. Maybe the FA missed these tweets when doing their in-depth character research? No, they just didn’t think it was relevant. Sigh.

The tweets were also made 6 years ago, when Neville was 35, so youthful immaturity cannot be used as a defence. But apparently the FA doesn’t think this conduct should result in disciplinary action. In for a penny, in for a pound.

Whilst not as much of a PR fiasco as the racism scandal, this debacle doesn’t suggest that the FA has learned its lesson. In any event, they are now left with a manager who didn’t apply for the job, didn’t have relevant experience and had expressed views that were incompatible with the role.

The issue of discrimination also comes into play, as female candidates felt that their past and credentials would be scrutinised more than the eventual (male) successful applicant’s. We predict a follow up to this story within the next 12 months. Chances of Neville getting 2 years’ service and qualifying for unfair dismissal rights? No comment.

The post Phil Neville: The FA’s latest PR Disaster appeared first on PJH Law.

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Minimum Wage News: RyanAir Investigated

Conditions for gig economy workers was the big employment law issue of 2017 and one that is likely to be reformed in 2018. Unfortunately, poor practices are not exclusive to gig economy employers. RyanAir has been criticised by the heads of the Business and Work & Pension committees after they failed to adequately answer questions on employment conditions and declined to answer further queries.

Cabin crew are reportedly required to work for free, pay for training and uniforms themselves and take significant periods of unpaid leave. This means that many, including agency staff, earn far less than the minimum wage.

Government and media scrutiny should reveal the true extent of conditions and the Government is keen to address the issue to prevent a race to the bottom in conditions across the airline industry. This could be the Sports Direct of 2018, watch this space.

The post Minimum Wage News: RyanAir Investigated appeared first on PJH Law.

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PJH Law News – New Clients Rising

January is often a dour month. No Christmas festivities, back to work, cold, dark and giving up treasured comforts such as booze, sugar or carbs. At PJH Law, as well as not giving up the finer things in life, we have also had a cheery start to the year at work.

Not only have we had our busiest January for new clients, we have also had some lovely feedback from satisfied former ones. A special thank you goes to the client who sent us these lovely hampers, a wonderfully thoughtful gesture. Arriving on a Friday afternoon, they included champagne and truffles made a perfect start to the weekend! Cheers.

The post PJH Law News – New Clients Rising appeared first on PJH Law.

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Employment Tribunal Fees: £1.8 million refunded in 2 months

One of the biggest issues facing employment law in recent years has been the access to justice barrier created by Tribunal Fees. Last summer, following a claim lodged by Unison, fees were abolished and a scheme was set up to repay those unlawfully charged fees – with 0.5% interest!

After opening the refund scheme in October last year, the Ministry of Justice refunded £1.8m to over 2,000 applicants in its first two months. The MoJ estimates that £33m is owed in refunds, meaning there are still a significant amount of refunds yet to be applied for or processed.

At PJH Law we are working with all former Tribunal clients to help complete their applications. With many having already received refunds dating back to claims brought in 2013.

The post Employment Tribunal Fees: £1.8 million refunded in 2 months appeared first on PJH Law.

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Lighter Side Of The News: Kiosk Keith Kicked Out

To finish off this month’s update we have another tale of the bizarre. Over the years we have seen some remarkably silly things – a personal favourite being someone who when at his disciplinary for alleged swearing opened the disciplinary meeting by saying, ‘what the f**k is this about?’ – and every now and again similar tales wind up in the tabloids.

This month’s numpty, is Kiosk Keith, who some readers might recognise as the grumpy extra from I’m a Celeb. Whilst the contestant’s behaviour doesn’t go down well with Keith during Dingo Dollar Challenges, his own behaviour has gone down like a lead balloon with colleagues.

Keith, real name Raymond Grant, 52, has been dismissed from the show after reports of making unwanted drunken advances towards a female co-worker, who was considerably younger than him, on the shuttle to work. Following the revelations about sexual harassment at work last year, particularly in the entertainment industry, this sort of behaviour will hopefully become a thing of the past.

The post Lighter Side Of The News: Kiosk Keith Kicked Out appeared first on PJH Law.

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The effective date of termination (EDT) is the date when the employee’s continuous employment ends. This can be either the end of their notice period, or, the date that the employee was summarily dismissed without notice. The employee has 3 months less a day from the effective date of termination, plus any period of ACAS Early Conciliation, which effectively stops the clock – to bring an unfair dismissal claim before the Tribunal.

The question in today’s case is:

When an employee is given notice after they have been summarily dismissed, does that move the effective date of termination (EDT) from the summary dismissal date to the end of the notice period?

Cosmeceuticals Ltd v Parkin

Ms Parkin, the Claimant, was the Managing Director of Cosmeceuticals Ltd, the Respondent. The Respondent had concerns with her performance and that the Claimant, who held the most senior role below Board Level, was not visible enough within the office.

The performance issues and lack of visibility stemmed from the Claimant having difficult personal circumstances at home. It was agreed she would take a two-month paid sabbatical. During this sabbatical, the Respondent’s concerns over performance increased. The Respondent told the Claimant that she would not be returning to work on 1st September. She was then put on garden leave and served notice, which would expire on 23rd October.

The Claimant submitted an unfair dismissal claim more than 3 months after 1st September but less than 3 months from 23rd October. The Respondent argued the Claimant was summarily dismissed on 1st September and that her claim was out of time because it was more than 3 months after the EDT. The Claimant held the EDT was when her notice expired on 23rd October and the claim was in time.

The ET found that the Claimant’s EDT was the latter date, when her notice expired and the claim was within time. The Respondent appealed and the EAT accepted the appeal. It held that the EDT was 1st September as that was the date of summary dismissal, albeit that such a dismissal was by conduct that is the Claimant was removed from post. The Claim was therefore bought out of time.

The takeaway point:

No, the date of the employee’s summary dismissal is the effective date of termination, even if the dismissal is by conduct that is removal from position. This applies even if the employer should have given notice but failed to do so, or, in this case, served notice after dismissal. An interesting case but one that could have been avoided had notice not been served after the date of dismissal. The one point that does not seem to have been argued is that if the Claimant was dismissed on 1 September, under the rules on calculating service her service in employment ran to 23 October. It does not seem satisfactory to have a service date for EDT purposes that is different to the service date for continuous service purposes.

The post Cosmeceuticals Ltd v Parkin – When an employee is given notice after they have been summarily dismissed, does that move the effective date of termination (EDT) from the summary dismissal date to the end of the notice period? appeared first on PJH Law.

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