is obesity a disability in the context of discrimination?

Posted on April 30, 2013 by Martin Malone

It was a mistake, the Employment Appeal Tribunal held in Walker v Sita Information Networking Computing Ltd, for an Employment Tribunal to say that a claimant was not disabled because there was no identifiable or recognisable pathological or mental cause for his “constellation of symptoms”. The Tribunal had been wrong to concentrate on the fact that there was no physical or mental cause for the impairments suffered – the point to look at was what effect the impairments had on everyday life, except where there was any doubt as to the genuineness of the symptoms.

In this case, the claimant suffered from “functional overlay” accentuated by his obesity – he weighed around 21.5 stones (136.5kg). EAT President Langstaff considered that obesity was not a disability of itself, but it could make it more likely that a claimant would be disabled. On the other hand, because obesity can be reversed by a determined effort to lose weight, it could be that any impairments caused by obesity could be reversed within 12 months – thus meaning that the claimant would not be disabled within the statutory definition, which is:

Section 6 Disability
(1)A person (P) has a disability if-

– (a)P has a physical or mental impairment, and

– (b)the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

As confirmed in the government’s guidance to the definition of disability and corresponding Equality Act Guidance

"substantial" is more than minor or trivial – e.g. it takes much longer than it usually would to complete a daily task like getting dressed [and] "long-term" means [likely to last] 12 months or more – e.g. a breathing condition that develops as a result of a lung infection.

So what is "functional overlay". In this case what was described as an abbreviated list included asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains. Any reasonable person would regard such a combination as causing a great deal of pain and inconvenience and, in the normal sense of the word (which is what matters in this context) substantial impairment. It does not matter whether the impairment is physical or mental or a combination of the two. Equally it does not matter what has caused the impairment.

Mr Justice Langstaff made it clear that obesity does not of itself and without more render a person disabled. However Continue reading →

temporary real time information reprieve for small businesses

Posted on April 30, 2013 by Martin Malone

HM Revenue & Customs has announced a concession for employers of fewer than 50 employees allowing them to delay the full implementation of the new “Real Time Information” PAYE reporting scheme until 5 October 2013. Until then, smaller employers may provide the information when they do their usual payroll run, so long as it is not after the 5th of the month.

The grace period was announced in typically last minute fashion on 25 March as follows:

HM Revenue & Customs (HMRC) recognise that some small employers who pay employees weekly, or more frequently, but only process their payroll monthly may need longer to adapt to reporting PAYE information in real time. HMRC have therefore agreed a relaxation of reporting arrangements for small businesses.

Until 5 October 2013, employers with fewer than 50 employees, who find it difficult to report every payment to employees at the time of payment, may send information to HMRC by the date of their regular payroll run but no later than the end of the tax month (5th).

This is a temporary relaxation to give some extra time to small businesses that pay weekly (or more frequently) but who only run their payroll (or use an agent to run their payroll) at the end of the month. This extra time will enable these businesses to adapt their processes or change their arrangements with their payroll service supplier so that they can comply with the new legislation.

From April 2013, employers who choose to take advantage of this relaxation will still need to report their PAYE in real time by the last payday in the month or the end of the tax month (5th) at the latest.

This is not a withdrawal of the requirement to report PAYE in real time. All employers are still required to operate PAYE in real time and we expect most employers to be reporting PAYE in real time from their first payday on or after 6th April.

From 6th October all employers will be required to report PAYE in real time each time they pay their employees Continue reading →

can secret recordings be admitted as evidence in employment tribunal claims?

Posted on April 30, 2013 by Martin Malone

I suspect that, if asked, most people would assume that covert recordings cannot be admitted in evidence, based on general principles of fairness and natural justice. In Vaughan v London Borough Of Lewisham & Ors the Employment Appeal Tribunal considered this question. Ms Vaughan, who had raised a number of claims against Lewisham, made a blanket application that 39 hours of recordings she had covertly made at work should be admitted in evidence. The Employment Judge refused to admit the recordings. She had not been given access to any of the original tapes, or been provided with transcripts, and without knowing the contents of the recordings, she could not form a view on whether they were relevant to the allegations made.

On any reading of the matter Ms Vaughan is a serious litigant who was acting in person before the EAT. She had brought nine claims of which seven were before the EAT. Three were consolidated and dismissed after an employment tribnunal hearing which lasted for 20 days. An appeal to the EAT was rejected and that was in turn the subject of an appeal to the Court of Appeal (unresolved at the time of this EAT appeal).

She was also ordered to pay one third of the respondents’ costs in the concluded proceedings, estimated to total £260,000. Three of the remaining claims remain listed for an estimated twenty eight day hearing later this year. It is in the context of these remaining claims that the question of admissibility of covert recordings has arisen.

Ms Vaughan disclosed that she had secretly recorded numerous meetings with colleagues and managers. At a pre hearing review an Employment Judge determined that the recordings should not be allowed as evidence. This decision was appealed, along with the decision to award costs. Continue reading →

revisiting old warnings

Posted on April 30, 2013 by Martin Malone

Last month I commented on the case of Simmonds v Milford Club in which it was thought appropriate to revisit previous warnings if they were “manifestly inappropriate” when considering the fairness of a misconduct dismissal, Davies v Sandwell Metropolitan Borough Council emphasises that this approach is very much the exception to the rule.

In Davies the claimant, a teacher, had been given a final written warning for misconduct during a lesson on static electricity, against which she appealed. That appeal was never concluded after being adjourned at the request of the union official representing the teacher. It thus remained “live”. There was then a second allegation of misconduct and the claimant was dismissed, taking into account the subsisting warning. The dismissal was found to be fair by two different Employment Tribunals, the second of which specifically examined whether the warning had been valid.

The Court of Appeal turned down an appeal by the claimant; she had not shown that the warning was manifestly inappropriate, and although not strictly necessary for the decision, the Court also expressed the view that in appropriate cases it is legitimate to take into account the fact that an appeal against a warning has been abandoned or withdrawn.

The Court also took the opportunity to remark that tribunals should not get bogged down in listening to a mass of irrelevant evidence and should, if the parties do not do so themselves, take control of proceedings to avoid the waste of time and money. As Lord Justice Lewison commented: Continue reading →

you’re out of time, but all’s not lost

Posted on April 30, 2013 by Martin Malone

Employment Tribunals have a limited power to extend the three-months’ time limit for bringing unfair dismissal claims where it is “not reasonably practicable” for a claimant to make a claim in time. In the case of El -Kholy v Rentokil Initial Facilities Services (UK) Ltd the Employment Appeal Tribunal reminds us that, where the reason the claimant has not presented a claim within the time limit is an error by a professional adviser, he or she cannot rely on that error as making it not reasonably practicable to observe the time limit. In this particular case, the claimant was dismissed on 4 October, and consulted a solicitor on 15 October to help him appeal against dismissal. That appeal was refused on 6 January – by which time the three months had already run out. Proceedings were started a couple of weeks later, after the case had belatedly been passed to an employment specialist.

The practical lesson to be drawn from this case for professional advisors, is not be tempted to await the outcome of internal processes before lodging an ET1. Cynical employers could (and frequently do) draw another conclusion.

Even if the deadline is missed, that is not necessarily the end of the road from the claimant’s perspective. Missing deadlines is one of the most frequent causes of professional negligence claims against solicitors and other legal advisers. According to research carried out by Lockton Professions missed deadlines account for 46% of claims made against lawyers in litigation matters (including employment claims). Continue reading →

decisions, decisions

Posted on April 30, 2013 by Martin Malone

Redundancy selection can be a tricky business; faced with having to choose between a number of employees how do you make sure you do so fairly? Well, the standard advice is to establish a set of objective criteria and apply those. And very good advice it is too, but Mental Health Care (UK) Ltd v Biluan & Anor shows that it is possible to go too far in the quest for objectivity.

In this case, 19 redundancies were needed when a ward in a residential home was closed. There were 58 staff in the pool for redundancy selection – the entire staff, in fact. Three criteria were used – disciplinary record, absence record and a competency assessment. The latter was based on a recruitment process involving a written test, an interview and an assessed group discussion. Selection was carried out by a team of HR specialists and healthcare professionals who did not work in the home and had no personal knowledge of the staff at all.

When the result of the selection came out it surprised some, because a number of workers who were known to be good performers were amongst those had not done well. But those who scored lowest were selected, all the same, because the process was felt to be fair and transparent.

The Employment Appeal Tribunal held that the Employment Tribunal had been reasonable in its approach to the matter when concluding that the dismissals were unfair, and had not substituted its own view for that of the employer. Continue reading →

if employment regulation is a problem why are we getting more?

Posted on April 30, 2013 by Martin Malone

The government has published “Employment Law 2013: progress on reform” which notes both that in the UK, “burdens from employment law are low by international standards”, and that there is a perception that employment regulation is a problem (perhaps fuelled by exercises such as the “Red Tape challenge“?), leading to a situation where “fear of getting it wrong still undermines business confidence”. To help to counter this fear (perhaps greater than it needs to be since many employers appear to be under the impression that the ill-fated compulsory dismissal procedures are still in force) ACAS is to develop an online interactive tool for use to help with disciplinary issues.

The first change came into force from 6 April, when the period for collective redundancy consultation was cut from 90 days to 45 days. This is only relevant when 100 or more employees are subject to te same redundancy exercise. For 20 to 99 employees the consultation period remains unchanged (30 days). For fewer than 20 employees the consultation period must be reasonable but no minimum period is specified.

Looking further ahead this year:

– New settlement agreement arrangements including a new statutory code of practice will come into force at some as yet unspecified point during summer 2013
– Tribunal reforms have put been back to "summer" from spring 2013. These include new powers to strike out weak cases sooner rather than later, simplifying the procedure needed to withdraw claims and combining prehearing reviews and case management discussions. Fees will be introduced in employment tribunals at the same time, along with the reduced cap on unfair dismissal awards;
– In the autumn (note the trend for nothing more specific than a season!) there are plans to reform TUPE, as I outlined last month. The introduction of the new “employee owner” status has been put back to autumn 2013 from spring (about which read more in my introduction to this month’s newsletter). The proposal has also been tweaked in the recent budget, in which it was announced that the first £2000 worth of shares will be exempt from income tax and national insurance. There is also a requirement for independent advice.

Continue reading →

post termination victimisation not covered by Equality Act 2010

Posted on April 30, 2013 by Martin Malone

Prior to the Equality Act 2010, it had been recognised for quite a while that acts of victimisation taking place after the end of the employment relationship were unlawful under the preceding legislation (See Rhys Harper v Relaxion Group PLC [2003] UKHL 33). This would cover, for example, refusing to give an employee a reference for discriminatory reasons. However, it seems that the Equality Act doesn’t clearly cover this situation – although it is certain that this is not intentional. Notwithstanding an earlier Employment Tribunal decision which interpreted the Act purposively, and Equality and Human Rights Commission guidance suggesting that post employment victimisation is covered, in Rowstock Ltd v Jessemey, the Employment Appeal Tribunal has made it plain that it would not be right to fill the gap in the legislation judicially, because:

The instant situation is one in which express provision has been made for the post-relationship landscape but subject to an equally express exception in the case of victimisation

Moreover, the section of the Equality Act in question applies not just to employment cases, but to other legal relationships (such as the provision of services and landlord and tenant matters). Continue reading →

double jeopardy

Posted on April 30, 2013 by Martin Malone

In Christou(1) Ward(2) v London Borough of Haringey the Court of Appeal upheld what may seem the surprising decision that an employer could revisit an earlier disciplinary decision to give a written warning for misconduct and decide to dismiss the employee after all. It would not be wise, however, to treat this as any kind of general rule as it arose from highly unusual circumstances. The case related to the dismissals of a social worker and team leader working for Haringey who were responsible for the safeguarding of Baby P, who died as a result of neglect and mistreatment by his mother and two men. The social workers were disciplined after the death of the child and each given a written warning – the most serious sanction available under a simplified disciplinary procedure used by the Borough. This was not the only disciplinary procedure the Borough had available to it – there was also a full procedure, which no doubt would have taken longer, but which could lead to dismissal.

The case became notorious after the conviction of the mother and the two men and an inquiry into Haringey’s child protection arrangements was set up at the behest of the Secretary of State for Education at the time, which concluded that the Borough’s arrangements were inadequate. A new Director of Children’s Services was appointed who was prompted by the minister to look into the role of social workers in the whole sorry business. After a further investigation, it was considered that the original disciplinary procedure was “blatantly unsafe, unsound and inadequate“ and five further disciplinary charges were brought. After a new hearing, both were dismissed for gross misconduct. Continue reading →

employee shareholder contracts – unwelcome, unworkable and unlikely to see the light of day

Posted on March 28, 2013 by Martin Malone

For some months I have been writing about the problems likely to be encountered in implementing the government’s proposed employee shareholder contracts, apparently a particular favourite of George Osborne. Just last month I referred to criticism from the Law Society and it now turns out that no sooner had Mr Osborne referred in the Budget to changes to facilitate the implementation of the new contractual arrangements than the whole plan was thrown out by the Lords the very next day and by a majority of 54. The contracts were initially due to be introduced on 1 April 2013 and recently put back to 1 September 2013 but it now remains to be seen whether the government will continue to push on with its plans – in the face of almost universal opposition from the full political and economic spectrum – or admit defeat. I am bound to observe that one might reasonably think that there are rather more important issues which should be occupying the government’s attention at the moment.

In the record of proceedings and along with delegating the planning functions of the Mayor of London, registration of town and village greens and development orders within the curtilage of a dwelling house (see my observations elsewhere concerning jumbled legislation) came the simple words “Clause 27 – Leave out Clause 27″, thereby at a stroke eliminating the proposals in their entirety. Continue reading →