The Test for Escaping Reasonable Adjustment Obligations

Secretary of State For the Department for Work and Pensions V Alam [2009] UKEAT (9 Nov 2009)

The Tribunal was required to consider whether the provisions of section 4A(3) and 4A(3)(b) of the DDA applied so as to show that the Respondent was not under any duty to make reasonable adjustments.

They provide:

"(3) Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not be reasonably expected to know.–
…
(b) in any case, that that person has a disability and is likely to be affected in the way mentioned in subsection (1)."

as a matter of statutory interpretation and giving the language of those provisions their ordinary meaning, that to ascertain whether the exemption from the obligation to make reasonable adjustments provided for by section 4A(3) and 4A(3)(b) applies, two questions arise. They are:

1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: "no" then there is a second question, namely,
2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?
If the answer to that second question is: "no", then the section does not impose any duty to make reasonable adjustments. Thus, the employer will qualify for the exemption from any duty to make reasonable adjustments if both those questions are answered in the negative. That interpretation takes proper account not only of the use, twice, of the word "and" but also of the comma after "know" in the second line of section 4A(3).


Section 4A(1) of the DDA provides:
"(1) Where –
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled , it is the duty of the employer to take such steps as it is reasonable , in all the circumstances of the case, for him to have to take in order to prevent the provision , criterion or practice , or feature , having that effect."


http://www.bailii.org/uk/cases/UKEAT/2009/0242_09_0911.html

Environmental Crusader 'Possibly' Protected Under Employment Equality (Religion and Belief) Regulations 2003

Yesterday I happened to be in the same court room at the EAT when Mr Justice Burton handed down a judgment, which had journos running for the phone.

Mr Nicholson has claimed that his dismissal n the grounds of redundancy was an act of discrimination on grounds of 'philosophical belief'. The belief his barrister argued fell under the definition of Employment Equality (Religion and Belief) Regulations 2003 SI 2003/1660 (as amended by Equality Act 2006 s.77) as "any religious or philosophical belief".

Tim Nicholson, 42, of Oxford, was made redundant in 2008 by Grainger Plc in Didcot, as head of sustainability.
He said his beliefs had contributed to his dismissal and in March a judge at a preliminary hearing ruled that he could use employment equality laws to claim it was unfair. Grainger appealed against this as it believed his views were political.

The BBC reports the facts in its news story including a quote from Grainger:

'Grainger corporate affairs director Dave Butler said:

"This decision merely confirms that views on the importance of environmental protection are capable of amounting to a philosophical belief.
"Grainger absolutely maintains, as it has done from the very outset of these proceedings, that Mr Nicholson's redundancy was driven solely by the operational needs of the company during a period of extraordinary market turbulence, which also required other structural changes to be made within the company.'

John Bowers QC for Grainger argued that Mr Nicholson was describing a scientific view rather than a philosophical belief, which themselves, 'are not capable of scientific proof'.

The EAT (Burton J. sitting alone) has changed but not overruled, the employment judge's decision and has agreed that the case can go to trial on the basis that “the asserted belief held by the Claimant upon which he bases his claim of discrimination is capable of being a belief for the purposes of” the 2003 Regulations.

Emplaw reports: Mr Nicholson will need to provide (i) evidence directed to the genuineness of his belief; (ii) evidence that it is a belief rather than "an opinion or viewpoint based on the present state of information available" and (iii) evidence from which the Tribunal could conclude that his dismissal was on the grounds of that belief.

BBC:

http://news.bbc.co.uk/1/hi/england/oxfordshire/8339652.stm

The Regs:

http://www.opsi.gov.uk/si/si2003/20031660.htm

No of Tribunal Cases Down on Last Year

The no of ET cases has fallen - there are some interesting stats here such as 32% of cases are conciliated via ACAS.



http://www.tribunals.gov.uk/Tribunals/Documents/Publications/ET_EAT_Stats_0809FINAL.pdf

Hot off the Press - At Last Vento Guidelines Uplift!

The Employment Appeal Tribunal has, yesterday, handed down its judgment in the case of Da'Bell v NSPCC.

HHJ McMullen QC, presiding, has held that Vento damages (for injury to feelings in discrimination cases) should be increased to reflect inflation as follows:-
lower band: £ 5,000 to increase to £ 6,000
middle band: £ 15,000 to increase to £ 18,000
upper band: £ 25,000 to increase to £ 30,000

Injury to feelings awards are not punitive but represent suffering. Exemplary damages are available if public servants are involved and aggravated damages if a party has pursued a case unfairly and aggressively.

Breach of grievance procedure uplifts paid on what?

The EAT has given judgment in the case of Tim Arrow & Sons v Olney, which is authority for the proposition that where a Tribunal award includes an uplift, if the respondent pays the claimant a sum to cover the award before Judgment, the uplift is calculated on the outstanding sum due, rather than the total amount of the award.

The Learned Judge was not happy with the result:

'Certainly it goes against all instinct to allow a party to get away from the statutory uplift merely by paying the sum due at the last possible moment before the award is made. But we are stuck with the words of Section 33(3):
"It must, subject to subsection four, increase any award which it makes to the employee by 10% and may, if it considers it just and equitable in all circumstances to do so, increase it by a further amount, not so as to make it a total increase of more than 50%."'


http://www.bailii.org/uk/cases/UKEAT/2009/0527_08_0406.html

Labour to Extend Parental Leave

The government has dropped plans to improve maternity leave but in 2011 all fathers will be entitled to 6 months parental leave.


Currently fathers can only take two weeks' paternity leave. Under the new arrangements parents will have to give employers at least eight weeks' notice as to whether it will be the mother or father who will take leave.

Postal Strikes Continue

More strikes are on the way - Part of the problem the Union's dislike of plans to employ more part time workers



http://www.independent.co.uk/news/uk/home-news/post-workers-to-hold-national-strike-ballot-1784636.html