In this
update:
Disability
discrimination – what does "likely" mean?
The
House of Lords has confirmed that the word
"likely" in the Disability Discrimination Act
1995 (DDA), used in provisions which supplement
the definition of disability, means "could well
happen", rather than "more probable than not".
This distinction potentially makes it easier for
employees to establish disability under the
DDA.
In
SCA Packaging v Boyle (which started in
a Northern Ireland industrial tribunal), the
employee suffered from hoarseness caused by
vocal nodes. She adhered to a strict "management
regime" to conserve her voice. This regime
included sipping water throughout the day,
staggering telephone calls and moving away from
background noise. Following an operation to
remove the vocal nodes, they did not return.
Whilst the employee believed this was a result
of her management regime, the employer believed
that she had been cured and denied she suffered
from a disability within the meaning of the DDA.
The employee later brought claims for disability
discrimination concerning the employer's failure
to make adjustments and in connection with her
subsequent dismissal.
The
House of Lords considered whether the employee
was disabled. Under the DDA, a person has a
disability if he has "a physical or mental
impairment which has a substantial and long-term
adverse effect on his ability to carry out
normal day-to-day activities". Two further
provisions of the DDA, which supplement this
definition, were relevant in this case:
-
an
impairment which ceases to have a substantial
adverse effect on a person's ability to carry
out normal day-to-day activities should be
treated as continuing to have that effect if
that effect is likely to
recur.
-
an
impairment which would be
likely to have a substantial
adverse effect on the ability of a person to
carry out normal day-to-day activities, but for
the fact that measures are being taken to treat
or correct it (e.g. in this case, the employee's
management regime), should be treated as having
that effect.
The
House of Lords confirmed that the word "likely"
in the above context meant "could well happen".
Overruling earlier Employment Appeal Tribunal
decisions, the House of Lords considered that
the purposes of the DDA are best served by
adopting the broader and less exacting test as
to what is "likely". In this context, asking the
question whether a particular outcome is more
probable than not is simply inappropriate. On
the basis of the lower standard, the employee
was considered to be disabled for the purposes
of the DDA.
The
House of Lords also noted that the Guidance
on matters to be taken into account in
determining questions relating to the definition
of disability, which tribunals must take
into account, states that 'it is likely that an
event will happen if it is more probable than
not that it will happen'. However, Baroness Hale
described this as a curious statement which
appears to have confused "likely" and
"probable". She stated that probability denotes
a degree of likelihood greater than 50%.
Likelihood, on the other hand, is a more
variable concept. Lord Rodger also stated that
while the Guidance can helpfully illustrate the
way that a provision may work in practice, it
cannot be regarded as an authority on a point of
statutory interpretation.
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Ending age
discrimination in services and public functions
- consultation
The
Government Equalities Office has this week
published a consultation
document, outlining how it is
developing policy proposals for exceptions from
the age discrimination ban.
The
Government plans to use the Equality Bill to
outlaw unjustifiable age discrimination against
adults aged 18 and over by those providing
goods, facilities and services and exercising
public functions. This consultation document
sets out how its proposals are developing
towards specifying those age-based practices for
which it believes exceptions from the ban on age
discrimination in services and public functions
may be warranted. It covers three main
areas:
The
consultation closes on 30 September
2009.
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'Dual discrimination'
clause proposed for Equality Bill
A new clause has been
proposed for the Equality Bill which would
protect individuals from discrimination based on
a combination of two protected characteristics.
As
noted in earlier Employment Updates, the
Government's proposals are aimed at protecting
people who experience discrimination because of
a combination of two characteristics, such as
black women or religious men. At present,
individuals who experience such discrimination
do not always have a remedy under the law and
are often required to bring separate claims in
respect of each protected characteristic, which
does not necessarily reflect the discrimination
which has actually occurred. The new 'dual
discrimination' clause would therefore allow
people to make a claim if they were directly
discriminated against because of a combination
of two relevant protected characteristics.
Vera
Baird, Solicitor General and Equality Bill Lead
Minister, has said: "People's identities are
multi-faceted and complex, and we are delighted
to bring forward an amendment to the Equality
Bill which would reflect this. This clause would
provide protection for people who at present
would have to guess on what basis they have been
discriminated against, wholly outside their
dignity.
"Business
will benefit if all the issues in one case can
be dealt with together and there will be better
access to justice for all. Protection against
"dual discrimination" would be a progressive
step forward and confirm our place as a world
leader in the fight against discrimination and
disadvantage."
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the top
New BIS guidance on TUPE
The
Department for Business, Innovation and Skills
(BIS), formerly BERR, has published a
new guide on
employment rights on transfers, under the
Transfer of Undertakings (Protection of
Employment) Regulations 2006 (TUPE).
The
BIS guide outlines the key provisions of TUPE
and also reflects the changes to the employee
liability information required under TUPE, which
were made following the repeal of the statutory
dispute resolution procedures on 6 April
2009.
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BIS research on characteristics
of rejected tribunal claims
BIS has
published a report on its
research into the characteristics of rejected
employment tribunal claims.
The
research is based on telephone interviews with
over 1,000 claimants whose claims were initially
rejected. The report explores the use of
internal procedures prior to the claim, the use
and impact of advice and representation, the
outcomes of the disputes and claimants'
post-claim experiences.
The
findings include the following:
- 48% of claimants reported discussing the
dispute which gave rise to the claim with the
employer
- most claimants felt strongly that employers
typically did not want to acknowledge the
relevant problem and accordingly they did not
respond adequately to it
- almost all claimants sought advice or
guidance before bringing a claim, with two in
five of those resubmitting their claims after
securing further advice
- settlement was more likely where there was
discussion between the parties prior to the
claim
- one in seven claimants still work for the
employer against whom they brought the
claim
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New guidance on dealing with gay
and religious staff
The charity, Stonewall, has published guidance for
employers on how to manage potential conflicts
between lesbian, gay and bisexual workers on the
one hand and religious workers on the other. The
guidance includes case studies from various
organisations and examines how to prevent and
respond to incidents in the
workplace.
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Cost of heatwave?
The recent heatwave, however welcome, may
lead to lost profits and reduced productivity
for businesses, according to the Centre for
Economics and Business Research
(CEBR).
CEBR has predicted that the heatwave
could result in costs of up to £162 million a
day in lost productivity alone. They have
predicted further costs through staff arriving
late because of delayed transport or rush hour
avoidance (£4 million a day), staff not turning
up to work (£15 million a day) and also reduced
spending because of the weather (£6 million a
day).
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