Can you discriminate against a ‘non-disabled’ employee on grounds of disability?

 So, here we are: January. Christmas has come and gone and the warm lights of December have been replaced with the wind and rain of January. Sigh. But anyway, how was your Christmas? I hope it was a time of rest and good health.

My Christmas? As usual, it was filled with random discussions around the Christmas dinner table including, as ever, conversations about weird and wonderful Employment Law cases. In particular, some of my family members were shocked to hear that a non-disabled employee can suffer disability-related discrimination. One even suggested that I make the subject into a blog when I returned to work and, me being me, I couldn’t resist such an invitation…

So what am I talking about? Well, this was the case of Chief Constable of Norfolk v Coffey which concerned a female police officer who applied for a job in another police force. The police officer had a progressive hearing condition with tinnitus which, going forward, would continue to worsen. When originally recruited for her current police force, she failed the meet the usual criteria for police recruitment due to her low level of hearing but, after the police force arranged a practical functionality test, she was passed for duty and assigned for front-line duties. There were no concerns over her performance during her time in the role.

The issues started in 2013 when she applied to transfer to a new police force. As was standard, she attended a pre-employment health assessment. The medical practitioner concluded that, whilst her hearing level was technically just outside the usual police force parameters, she performed her current role with no difficulties and a practical functionality test was recommended. However, the new police force refused to follow this recommendation and, instead, declined her request to transfer due to her hearing below the recognised standard and, rather importantly, commented that it would not be appropriate to accept a candidate outside of the recognised standard of hearing because of the risk of increasing the pool of police officers placed on restricted duties.

Disability Discrimination: Adjustments for candidate with Asperger’s Syndrome

In the recent case of Government Legal Services v Brookes UKEAT/0302/16, the Employment Appeals Tribunal (EAT) upheld the decision of the Employment Tribunal (ET) that requiring a job applicant with Asperger’s to take a multiple-choice test as part of the recruitment process, amounted to indirect discrimination.

Background

The facts of the case were that the Government Legal Service (GLS) was recruiting lawyers in what the EAT later called “a fiendishly competitive recruitment process”. Applicants would be required to complete and pass a multiple choice ‘Situational Judgment Test’ (SJT), in order to be invited for interview.

Prior to commencing the test the Claimant, Ms Brookes, contacted the GLS and asked if adjustments could be made due to her Asperger’s – in particular, she asked if she could give her answers in a short narrative format rather than multiple choice so that she was not placed at a disadvantage.

Unfortunately, the GLS advised her that an alternative test format was not available, however did state that additional time allowances might be permitted for tests taken at a later stage following the successful completion of the entry tests.  The Claimant therefore completed the SJT in its existing format and failed, albeit she scored just 2 points under the pass mark required.

Ms Brookes brought claims of indirect disability discrimination and failure to make reasonable adjustments at the ET, arguing that the multiple-choice format of the test placed her at a disadvantage in comparison to other candidates who did not suffer from Asperger’s.  She further claimed that there could be no justification for this, and no reasonable adjustments had been made to the process.

The decisions

Is requesting a holiday from July to September manifestation of a religious belief that is capable of protection?

Where do you draw the line with protection of workers on the grounds of religious or philosophical belief? It is a question that I have been addressing in this blog ever since protection from discrimination on these grounds was first introduced. It is logical that there is a limit. For example, if a person’s belief is used as justification for discriminating against others, there can be no case for allowing the alleged victim of discrimination him or herself to engage in discriminatory acts. Another question is whether and if so at what point the manifestation of a religious belief tips over the edge between a “reasonable” accommodation and one which, perhaps for a number of reasons, “just goes too far”. That leads us to the remarkable case of Mr Gareddu, a practising Roman Catholic of Sardinian origin.

Gareddu v London Underground Limited concerned Mr Gareddu’s requests for summer holidays running from 27 July to 2 September (five consecutive weeks). He joined London Underground in 1990 and was entitled to 38 days’ holiday per year (including Bank Holidays). From 2009 to 2013 he took five weeks’ consecutive summer holiday to travel to Sardinia with his two brothers to visit his mother and attend a number of religious festivals, up to 17 per visit. He said that he would attend the festivals for those saints with whom he felt a particular affinity.

In March 2013 a new line manager, Mr Cross, took over. He refused the request for five weeks’ holiday and said that, in future, he would be unlikely to be granted more than 15 continuous days during the summer holiday period. As it happened the 2014 trip was pre-booked and allowed but a holiday request from 27 July to 2 September 2015 was refused. Mr Gareddu contended that this amounted to indirect religious discrimination, contrary to section 19 of the Equality Act 2010.

At a tribunal in December 2015 Mr Gareddu’s claim failed on the basis that the “asserted religious belief requiring attendance at a series of religious festivals during the period 27 July to 2 September” was not made in good faith. While attending religious festivals was a manifestation of religious belief, being required to do so within a specific five-week period was not in itself a specific manifestation capable of protection under the Act.

Mr Gareddu appealed to the Employment Appeal Tribunal on four grounds:

The tribunal took the wrong approach by failing to make findings as to the provision, criterion or practice (PCP) in issue, whether the employer applied that PCP to people with whom Mr Gareddu did not share the characteristic of being a Sardinian Catholic, whether participating at numerous religious festivals was a typical manifestation of the religious beliefs of Sardinian Catholics, whether Mr Gareddu was put at a disadvantage as a result of the PCP and, if so, whether the disadvantage was justified as a proportionate means of achieving a legitimate aim.
The tribunal imposed an unwarranted additional requirement that religion should be the sole or primary motivation for the manifestation in order to benefit from protection under section 19.
It considered an irrelevant factor – the desire to worship collectively with his family – when considering whether he had acted in good faith.
It adopted a perverse construction of Mr Gareddu’s evidence by finding that he had claimed to attend the same 17 events annually and, flowing from this, that he had changed his evidence in the course of the hearing.

More about zero hours contracts and other election proposals

On 29 April the Labour Party announced that, as part of its 20 point election package for workers, it would ban zero hours contracts, end unpaid internships and end the public sector pay cap. Although well-received by many, the subsequent round of interviews on the Sunday morning politics shows quickly flagged up a problem: what about those who want to be employed on zero hours contracts? It was pointed out that these contracts are convenient for many, including students who want to earn some casual income when time permits. Another problem with a ban is where the line is drawn. Would, four, six or ten hours’ contracts be permitted?

Meanwhile, McDonalds has announced that it is giving 115,000 workers on zero hours contracts (approximately 10% of the entire UK zero hours workforce) the option of moving to fixed contracts with a guaranteed number of hours per week. The move came in response to feedback from staff that they were struggling to obtain loans, mortgages and phone contracts without being able to demonstrate that they had a secure income. However, in the trial run at 23 sites, 80% of staff chose to stay on their existing contracts when offered four, eight, 16 or 35 hours per week contracts (in line with their existing typical working hours).

Other notable proposals in the Labour Party’s Promise to Workers include:

guaranteeing trade unions a right to access workplaces;
four new Bank Holidays;
full employment protection from day one (rather than, for example, the two year qualifying period for protection from unfair dismissal);
abolition of employment tribunal fees;
doubling paid paternity leave and increasing the rate payable;
strengthening protection from redundancy when the individual concerned is pregnant or on maternity leave;
reinstatement of protection against third party harassment.

The Conservative Party has announced that its manifesto will include the replacement of the Mental Health Act and “sweeping reforms” to the Equality Act 2010 “to protect those with depression and anxiety from being discriminated against at work”.

Equality Act 2010 (Gender Pay Gap Information) Regulations 2017

On 6th December 2016, the Government published the Equality Act 2010 (Gender Pay Gap Information) Regulations 2017, which will require large private sector businesses to publish gender-based pay statistics each year.

These Regulations are likely to come into force (subject to parliamentary approval) on 6th April 2017, and will essentially require employers with 250 or more employees (within the private and voluntary sectors) to publish gender pay information on their company website on 5th April 2018 and thereafter on an annual basis. The information must remain on the website for not less than three years and they must also submit this information to the Government each year (a Government website will be created where the information will have to be published, however details concerning the Government website will likely be released nearer 5th April 2017.)

The above has raised a number of questions from employers such as which individuals need to be taken into account for these purposes, and, exactly what information do they need to provide?

Firstly, in terms of the personnel be taken into account, the Regulations state that such individuals must be undertaking work for the business in a personal capacity, therefore consultants as well as employees, must be accounted for.

Secondly, with regards exactly what information must be provided, the following guidelines are given:

the difference in mean pay between male and female employees
the difference in median pay between male and female employees
the difference in mean bonus pay between male and female employees
the difference in median bonus pay between male and female employees
the proportions of male and female employees who were paid bonus pay
the proportions of male and female employees in each quartile of their pay distribution

The information must be collated from data taken on 5th April every year, starting with 5th April 2017. The bonus information should be based on the preceding 12-month period, beginning with the 12 months leading up to 5th April 2017.

What happens if my business does not comply?

Comparators in Equal Pay claims

In the recent case of Brierly and ors v Asda Stores Ltd, a Tribunal has ruled that Asda store workers are able to compare themselves to distribution depot workers for equal pay purposes.

The facts of this case are that a group of (mainly female) Asda employees who were employed on an ‘hourly rate’ basis, argued that they were entitled to the same rate of pay as the distribution depot employees (the majority of whom were male). They claimed that their duties had historically been thought of as ‘women’s work’ and therefore worth less than the duties carried out by the employees working in the depot.

At the preliminary hearing, the Tribunal was tasked with deciding whether the store workers were able to rely upon this comparison. Section 79 of the Equality Act 2010 states that an equal pay comparison is only valid if the claimant and comparator are both employed by the same employer and work at the same establishment; or if they are both employed by the same employer and work at different establishments but ‘common terms apply at the establishments’.

The Manchester Employment Tribunal firstly considered whether the above comparison would be allowed under EU law. It stated that although it is not enough that the Claimant and proposed comparator are employed by a single employer (there must also be a single ‘source’ i.e. a body responsible for this inequality but that could restore equal treatment), in this particular matter the single ‘source’ test had been satisfied, thus rejecting Asda’s argument that the division of the Company structure into Retail and Distribution sectors meant that pay-setting authority had been delegated to separate bodies.

Taking recruitment a step too far!

Recruitment firm ‘Matching Models’ has recently come under fire for posting a job advertisement requesting that applicants are ‘attractive women’ only and have even specified what bra size the successful applicant should be.

The advertisement in question specified that applicants for a PA position should have “a classic look, brown long hair with b-c cup”. It went on to state that the job would be based in the countryside and that “a lady with no commitments would seem to match our client expectations”. The Equality and Human Rights Commission (EHRC) called the advertisement “appalling, unlawful and demeaning to women”. Women’s rights campaigners have also criticised the firm with Sam Smeathers (Chief Executive of the Fawcett Society) stating:

It is extraordinary that they are taking this approach and almost certainly falls foul of equality legislation. If we ever wonder why the battle for gender equality hasn’t been won, this is a timely reminder.

Matching Models is also recruiting a "sexy female driver" to drive a Porsche Cayenne two days a week for between £40,000 and £50,000-a-year for a Knightsbridge-based businessman and polo team owner.

Indirect religious discrimination

Can a worker be dismissed for refusing to leave a partner convicted of unrelated criminal conduct with which the dismissed worker was not involved?

 

This question was considered in the recent case of Pendleton v Derbyshire County Council & Anor (Religion or Belief Discrimination) [2016] UKEAT 0238 15 2903.  The facts of this case were that the Claimant’s (Mrs Pendleton’s) husband was the headteacher of a local school.  The Claimant herself was also a teacher employed at another local school where she was teaching a Year 6 class, had an unblemished disciplinary record and was highly respected both in school and also within the Anglican Christian community (being a devoted and practising Anglican Christian).

 

In January 2013 the Claimant’s husband was arrested on suspicion of downloading indecent images of children and voyeurism.  He was later convicted of these offences and sentenced to ten months’ imprisonment.

 

The Claimant initially left her husband and went to stay with her parents, taking leave from work – at this point the headteacher of the school where she was employed assured her that her position would remain open for when she returned.  Although there was no evidence that the Claimant had any knowledge or involvement in her husband’s actions, the headteacher had also stated that the school couldn’t support her if she stayed with her husband.

 

During her period of leave the Claimant decided that whilst she did not condone what her husband had done, she placed importance on her marriage vows and would therefore stay with him if he could show unequivocal repentance.

 

The school subsequently dismissed the Claimant summarily, stating that she had “… chosen to maintain a relationship with [her] partner who has been convicted of making indecent images of children and voyeurism. This has led the panel to believe that [her] suitability to carry out the safeguarding responsibilities of [her] role … have been eroded. Furthermore, the choices [she had] made in [her] personal life are in direct contravention to the ethos of … the … School”.

 

The Claimant’s appeal against her dismissal was unsuccessful and she therefore brought claims of unfair dismissal, wrongful dismissal and indirect religious discrimination against the Respondent based upon her religious beliefs as noted above.

 

The Employment Tribunal agreed with the Claimant’s submission that she had been unfairly dismissed, stating that the reason for her dismissal was not some other substantial reason (SOSR) – she had not committed an act of misconduct let alone gross misconduct – but rather the Respondent’s view that the Claimant had used poor judgment in staying with her husband despite him being a convicted sex offender.  The Claimant’s claim of wrongful dismissal also succeeded in light of the above.

 

With regards the indirect discrimination claim however, the Tribunal noted that the claimant held a belief for the purposes of section 10(2) Equality Act 2010, that: “her marriage vow was sacrosanct, having been made to God and being an expression of her religious faith”.  The Tribunal further accepted that the Respondent had applied a provision, criterion or practice of dismissing those who chose not to end a relationship with a person convicted of making indecent images of children and voyeurism, however concluded that the Claimant would have been dismissed whether she believed in the sanctity of marriage or not as another individual in the same situation would have also been dismissed, even if they did not share the Claimant’s religious belief.  The tribunal did comment however that had they needed to consider the question of proportionality, they would have found that the Respondent did not show that the dismissal was a proportionate means of achieving a legitimate aim.

 

The Claimant appealed to the Employment Appeal Tribunal (EAT) on the basis that making her choose between her marriage vows and her career was enough to show she had been placed at a disadvantage, especially given she had been required to act against her religious beliefs.

is type 2 diabetes a disability?

Some 3.1 million people in the UK currently have Type 2 diabetes and the number is expected to increase to 4 million by 2025. Of course it is unlikely that there has been an exponential increase in the number of diabetics in the last few years and it is far more likely that there is an increased willingness to make a diagnosis of Type 2 diabetes. Type 2 diabetes was not identified until the 1930s and not treated until the 1950s. Currently it is estimated to affect 6% of the world’s population.

As such it has the capacity to be a disability suffered by a significant proportion of the workforce. But is it?

In Metroline Travel Limited -v- Stoute His Honour Judge Daniel Serota QC, sitting in the Employment Appeal Tribunal, decided to address the issue. At a preliminary hearing in the Watford Employment Tribunal Judge Smail decided that Mr Stoute, who suffers from Type 2 diabetes, was disabled within the meaning of the Equality Act 2010. Mr Stoute was employed as a bus driver from 1992 to March 2013 when he was dismissed for gross misconduct. His substantive claim was rejected but, at a hearing in September 2014, Mr Recorder Luba QC suggested that there was a real chance of showing that anyone with Type 2 diabetes “had in consequence of that fact alone met the statutory definition of disability in the Equality Act 2010”. It was this aspect that Judge Serota went on to consider.

The Judge noted that there were times when Mr Stoute was not taking medication to reduce blood sugar levels, relying instead on a diabetic diet by avoiding, for example, sugary drinks. The Judge noted that a diabetic diet was also likely to include avoiding foods with a significant  sugar content such as sweets, chocolates a fruit juices.

Judge Serota made clear his scepticism about whether managing one’s diet could be regarded as a course of medical treatment:

misbehaviour in the Met – how not to treat an employee

Carol Howard, a Police Constable, has been awarded £37,000 after taking her employer, the Metropolitan Police, to an Employment Tribunal. In its verdict the Tribunal found that PC Howard had been “bullied and victimised” by her boss, because she was black.

The tribunal also went further in its condemnation of officers from Scotland Yard, saying that they had been “malicious and vindictive” and that they had “singled out and targeted” PC Howard since she had made her complaint. The Metropolitan Police were also told to review all internal complaints of discrimination that had been made by Police officers and other staff in the last five years.

PC Howard, one of only two black police officers in the Metropolitan Police’s 700 strong Diplomatic Protection Group first came to public attention in 2012 when she was chosen to represent the police as part of a poster campaign for the London Olympics. However, despite being one of the faces of policing in London, at work she was subject to sex and race discrimination.

When she complained to her superiors about the discrimination she was being subjected to, PC Howard found herself arrested on no fewer than three occasions in relation to a series of allegations. The Tribunal found that details of these arrests were released as part of a strategy attempt to deflect negative publicity surrounding the case.

The tribunal heard that Ms Howard had been supported by the Met’s Fairness at Work adviser DS Fiona Hepworth when she made her complaints but her report was subsequently altered to support the force before being filed in evidence at the tribunal.

Embattled Met Commissioner Sir Bernard Hogan-Howe was also criticised personally for attempting to “brush off” her complaints as “insignificant”.

The tribunal judge said: “The respondent had received a lot of negative publicity and had been heavily criticised in the media as a result of the tribunal’s judgment in favour of the claimant. We have no doubt that the second statement was issued to deflect attention and criticism from the respondent and to portray the claimant in a negative light.”

My colleague Sean Carty has commented on the case on our main website:
It is an employee’s statutory right not to be discriminated against by their employer. This case is a perfect example that despite the size, strength and resources available to an employer they are not above the law. PC Howard’s treatment at the hands of her superiors within the Police was completely unacceptable.

 

Despite my having dealt with many claims for workplace discrimination over the years I was nonetheless shocked to hear about the attitudes of the Metropolitan Police officers involved in this case, especially given the number of high-profile investigations into racism and discrimination within the force over the past 20 years. I would always advise people who are facing any kind of discrimination due to their race, or on the basis of any of the protected characteristics set out in the Equality Act 2010 to seek independent legal advice at the earliest opportunity.