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Archive for December, 2013

New Disability Discrimination Cases

Notice of disability

Agitated behaviour

Case    Spence v Covidien UK Commercial Ltd (2013) Eq Opp Rev 242:32, Leeds ET

Facts    Ms S displayed extreme nervousness and anxiety at work on a number of occasions. Her employer did not investigate any underlying cause of her behaviour. She was put on a performance improvement plan after her manager stated that her conduct had been unprofessional and inappropriate and her relationships with colleagues fractious and disrespectful. Ms S resigned and complained of disability discrimination.

Decision          1. It was conceded that Ms S was a disabled person.

2. The employer had denied that it knew of her disability. The ET found that it had actual knowledge of the disability. Even if it had not, it had constructive knowledge because it should have been alerted to the condition by the employee’s extremely agitated and nervous behaviour.

 

Reasonable adjustments

Burden on employer

Case    Environment Agency v Donnelly (2013) Eq Opp Rev 243:17, EAT

Facts    D, an employee of EA, suffered from osteoarthritis and spondylitis. It was accepted that she was a disabled person. Her mobility was impaired. In 2009 her health problems were such that she was unable to do her job. Efforts were made to find her an alternative post. In 2011 she was dismissed. She complained of unfair dismissal and disability discrimination. The ET found that the employer had failed to make reasonable adjustments in respect of car parking facilities. D was required to park in an overspill car park 10 minutes walk away, which involved a 10 minute walk over uneven surfaces. A reasonable adjustment would have been to allocate a reserved position in the normal staff car park. The employer appealed to the EAT.

Decision          The burden of a reasonable adjustment falls on the employer rather than the employee. It was not for the employee to adjust her own work so that she was not disadvantaged by the employer’s parking arrangements. Rather, it was for the employer to adjust parking arrangements to allow the employee to exercise her contractual right to arrive at work at 9.30 a.m.

 

Reasonable adjustments

Removal of disadvantage

Case    Secretary of State for Work and Pensions (JobCentre Plus) v Higgins (2013) Eq Opp Rev 243:19, EAT

Facts    H, an employee of S, suffered from a heart condition and was a disabled person. He was long-term absent from work through sickness. He was offered a 13 week phased return to work, which he rejected. The employer refused to extend the period and H was dismissed. His complaint of disability was upheld by the employment tribunal on the basis that there had been a breach of the duty to make reasonable adjustments. The employer appealed to the EAT.

Decision          1. The appeal was upheld.

2. The ET had failed to identify how the adjustment would have removed the disadvantage to H and had instead focused on whether H had acted reasonably in refusing to agree to the proposed rehabilitation programme.

3. A reasonable adjustment must be seen as a way of removing a specific disadvantage caused to an employee by some provision, criterion or practice applied by the employer. The duty to make reasonable adjustments is not a duty to accede to reasonable requests made by a disabled employee.

 


The Levellers on Law

The Levellers

Some of the earliest and most devastating criticisms of English law and lawyers were made by the Levellers in the seventeenth century in the context of revolutionary changes in English society following the Civil War and the execution of Charles I. The Leveller movement advocated popular sovereignty, extended suffrage, equality before the law and religious tolerance. The Levellers proposed radical reforms, most of which have not yet been carried out in Britain. The Levellers put forward a revolutionary programme, including the codification of the common law in a brief and intelligible handbook, the abolition of barbarous punishments and the reform of the prisons. Its keynote was decentralisation, so that the common man and his neighbours should govern themselves through their juries and elected magistrates.

HN Brailsford  states that, during the 1640s, the courts were distrusted and the legal profession disliked. In Brailsford’s view, the legal profession was greedy and corrupt and its technical habit of mind was even more unintelligible to the common man than it is today. Official documents and statutes were in Latin or Norman French. Indictments were not valid until they were read out in court in Latin. The fees lawyers charged were generally felt to be exorbitant and some of them were shameless in protracting litigation until their clients were ruined. In 1653 it was said that 23,000 cases had been waiting for settlement in Chancery for ten, twenty and even thirty years.

It happened constantly, Brailsford states, that peasants allowed their cases against landlords who robbed them of their common land by enclosure to go by default, because they could not afford to hire a Chancery lawyer. Workers who had grievances against their employer were in the same position. They had no trade union and could not face the cost of litigation at Westminster whereas the employers could.

Brailsford also points out that it would be easy to compile from the memoirs of this period a long list of the fabulous fortunes made by lawyers, beginning with Sir Edward Coke who is said to have made £100,000 in a single year.

Based on innumerable and sometimes conflicting precedents, the common law could be understood and applied to particular cases only by a skilled body of professional lawyers, who levied a heavy toll on the rest of the nation and made a resort to the courts so costly that only the rather rich or the very rash would venture on litigation.

In every rank of society below the upper layer to which the legal oligarchy belonged, a dread of the law courts and a detestation of lawyers were widespread.

 


Psychiatric Injury at Work

Psychiatric injury

 

Robbery of betting shop

 

Case    Nicholls v Ladbrokes Betting & Gaming Ltd [2014] PIQR P4, CA

 

Statute reference         Management of Health and Safety at Work Regulations 1999; Workplace (Health, Safety and Welfare) Regulations 1992

 

Facts    N was employed by L as a cashier. In November 2007 the betting shop where she worked was robbed by two armed and masked men. N suffered psychiatric damage. She claimed compensation from L, alleging:

  • Negligence in that L had failed to keep the front door of the premises locked by operating the magnetic lock fitted to it.
  • Breach of statutory duty in failing to carry out a proper risk assessment required by the 1999 Regulations.
  • Failure to provide suitable lighting in breach of the 1992 Regulations.

L denied all the claims.

At first instance, the claims succeeded. The judge found that the defence evidence was unsatisfactory and included deliberate falsehoods. No risk assessment document was produced. No policy or guidance had been laid down in relation to the use of the magnetic lock, other than at opening and closing times, and it should have been in use during the hours of darkness. Proper lighting should have been maintained outside the premises.

N was awarded £9000 compensation. L appealed to the Court of Appeal.

 

Decision          1. The appeal was allowed.

2. The trial judge had not been allowed to find on the evidence that there had been no proper risk assessment dealing with the risk of robbery at L’s premises.

3. The betting shop had been designated as at low risk of robbery because of its location.

4. The use of the magnetic lock was within the discretion of the manager on duty at the time.

5. N had not shown that the installation of a magnetic lock at a betting shop was perceived within the industry as an essential security measure.

6. There had been no previous robbery at the premises and no particular or heightened risk was perceived to attach to them.

 

 

Psychiatric injury

 

Causation

 

Application of Johnson v Unisys

 

Case    Monk v Cann Hall Primary School and Essex County Council [2014] PIQR P3, CA

Facts    M was employed as an administrative assistant at CH school. In 2008 ECC told her that she would be made redundant on August 31, 2008. In July 2008 the school governors decided that she would be denied access to the school before the end of term. She was required to clear her desk and hand in her keys and was escorted from the premises in front of teachers, parents and pupils. She was not told why this was done.

M brought proceedings for unfair dismissal and defamation. Both these claims were settled.

In July 2011 M brought an action for personal injury on the basis that she had suffered psychiatric injury as a result of the way in which she had been treated at the school. Essex CC admitted liability and admitted that it had failed to exercise reasonable care in the manner in which it brought the claimant’s employment to an end.

Essex CC then became aware of the decision in Johnson v Unisys, which limited the right of an employee to recover loss caused by the manner of his dismissal. It then applied to withdraw its admission and for the claim to be struck out as disclosing no reasonable cause of action. These applications were granted. M appealed to the Court of Appeal, arguing that her employment did not end until August 31 and was not therefore affected by Johnson v Unisys.

 

Decision          1. The appeal was allowed.

2. If M’s exclusion from the school from the school on July amounted to a dismissal, then the manner in which it was carried out was probably too closely related to the dismissal itself to escape the effect of Johnson v Unisys. If the exclusion was nothing more than an incident occurring during the period of her employment, it was difficult to see how it was sufficiently related to the dismissal to fall within the exclusion area.

3. It was not an abuse of process for M to argue that her employment ended on August 32, 2008.

4. the claim should not be struck out.


New Health and Safety Case

Multiple skull fractures: £7000 fine

Health and Safety Executive v B & B Agricultural Sales Ltd (2013) Truro magistrates’ court, December 6.

B & B Agricultural Sales Ltd has been fined after a worker suffered multiple skull fractures.

Significant points of the case

  • In May 2012 Jacob Wingett, an employee of B & B, was working at the company’s site near Liskeard in Cornwall. He was fitting a number plate to the top of a tractor cab. He was standing on the cross shaft arms at the back of the tractor when he lost his balance and fell a metre to the ground. He suffered multiple skull fractures and fractured arms.
  • No measures had been put in place to prevent the victim falling. There was no plan for the work, no safe system of working and no suitable training or supervision.

The company was fined £7000 plus £8000 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.

A spokesperson for the HSE commented after the case that falls from height are the biggest cause of workplace deaths and it is crucial that such work is properly planned, appropriately supervised and that sufficient measure are put in place to protect workers from the risks.


Effective Date of Termination of Employment

Effective date of termination

Resignation letter

Case         Secretary of State v Hibbert (2013) Morning Star, December 13, EAT

Facts        On June 29 Ms H hand-delivered a letter to her employer stating that there had been a fundamental breach of her employment contract and she had no alternative but to resign. On July 11 her employer accepted the resignation and stated that her last working day would be July 27. Ms H lodged a claim of unfair dismissal more than three months after June 29. She argued that her effective date of termination (EDT) was July 27. Her employer argued that it was June 29. The ET found that the EDT was July 27. in part because the employer had paid her for the whole of July. The employer appealed to the EAT.

Decision  1. The appeal was allowed.

2. The wording of the letter of June 29 was unambiguous. Ms H had terminated her employment on that date and her claim of unfair dismissal was out of time.


New Disability Discrimination Cases

Scepticism as to back pain

Case    Hemati v Sportec (UK) Ltd (in liquidation) and another (2013) Eq Opp Rev 242:30, Watford ET

Facts    H was employed by S at its store in Barnet, North London. In 2012 she was told to relocate to the South London branch. She objected to this on the basis that she had a back problem and could not travel so far on public transport. S’s managing director did not believe that H had back problems. He refused to allow her to return to work until she had obtained a fit note. H’s GP stated that she had a physical impairment in that she suffered from a central intervertebral disc prolapse. She was unable to sit down or to drive for more than 15 minutes at a time and was therefore a disabled person. H complained of disability discrimination.

Decision          1. Refusing to allow H to return to work, and not paying her, was unfavourable treatment arising from her disability.

2. The refusal to allow her to return to work was not a proportionate means of achieving a legitimate aim. A proportionate response would have been to tell H immediately that it was suspected that her disability was not genuine and to see an independent occupational health adviser. S should have been paid when she was not working.

 

Disability

Peanut allergy

Anaphylactic shock

Case    Wheeldon v Marstons plc [2013] Eq LR 859, Birmingham ET

Facts    W was employed as a pub chef by M. In 2011 he suffered an allergic reaction to nuts while at work. He did not return to work because he argued that it would put his health at risk. W complained of disability discrimination. He alleged that the employer had failed to make reasonable adjustments in that it had not offered him work where he would not be at risk. W had been hospitalised for anaphylactic shock seven times since he was aged 16.

Decision          At a pre-hearing review, it was decide that W was a disabled person. The growing intensity of the anaphylactic shock episodes had a significant effect on his day-to-day life.


Disability: Back Pain

Disability

Infrequent back pain

Case    Swan v LF Beauty (UK) Ltd (2013) Eq Opp Rev 242:29, Bristol ET

Facts    S, an employee of LF, was required to wear safety shoes. She complained that the shoes worsened her sciatica, which she described as occurring two or three times a year, and lasting for between one and two weeks. She resigned and complained of disability discrimination.

Decision          1. The claim failed.

2. Sciatica or back pain did not amount to a disability where the bouts of back pain were infrequent and short-lived. Occasional episodes of acute back pain are a common problem for the UK population generally. The effect in this case was minor or trivial.


Age Discrimination: Court of Appeal Decision

Material differences between age groups

Case    Lockwood v Department of Work and Pensions (2013) Morning Star, December 6, CA

Facts    L was employed by DWP as an administrative officer in 1999. In 2007 she applied for voluntary redundancy. She was aged 26 with eight years’ service and was entitled to a redundancy payment of £11,000. If she had been aged 35 or over, she would have been entitled to £18,000 more. L complained of age discrimination on the basis that an older worker with an identical length of service was entitled to a significantly larger sum than her. The ET rejected the complaint. It ruled that there was a material difference between L’s age group and the over-35s.The different payments reflected the difficulty which older workers would have in finding new employment, compared with L’s age group. This decision was confirmed by the EAT. L appealed to the EAT.

Decision          1. The appeal was dismissed.

2. The DWP was justified in paying older workers more severance pay than younger workers because younger people could find jobs more easily and had fewer financial commitments.

 


New Constructive Dismissal Case

Fundamental breach of contract

Case    Wright v North Ayrshire Council (2013) Morning Star, November 22, EAT

 

Facts    W was employed by N as a care assistant from 2003 until 2010. During her employment she lodged three grievances. None of these were properly dealt with. She was wrongly accused of theft by her employer. In 2009 W had to nurse her mother, who was seriously ill. In 2010 her partner suffered a stroke. In November 2010 w resigned and complained of constructive dismissal. The ET dismissed her claim. Although N had committed a breach of contract, there were circumstances beyond the contract which might have made W want to leave her work. The breach of contract had not been the effective cause of her resignation. W appealed to the EAT.

 

Decision          1. The appeal was allowed.

2. The proper approach was to ask whether the employee accepted the employer’s repudiatory breach by treating the contract of employment as at an end.

3. The crucial question was whether the repudiatory breach played a part in the dismissal. Once the tribunal has found that there has been a fundamental breach, all the employee has to do to establish constructive dismissal is to show that it was one of the factors that they relied on.

4. Where other factors are involved in the decision to resign, the tribunal may reduce compensation to reflect the chance that the employee would have left their employment even if the employer had not breached the contract.


New Employment Law Cases On State And Diplomatic Immunity

Right to fair trial

State immunity

Case    Benkharbouche v Embassy of the Republic of Sudan [2013] IRLR 918, EAT

Statute reference         State Immunity Act 1978, ss. 4, 16: European Convention on Human Rights, Art 6; Charter of Fundamental Rights of the European Union, Art 47

Facts    B was a cook at the Sudanese embassy in London. J was employed at the Libyan embassy. They made a number of claims to an employment tribunal. The employers pleaded state immunity. This was accepted by the ET. B and J appealed to the EAT on the basis that the plea of state immunity denied them access to court to enforce their rights.

Decision          1. The appeal was allowed.

2. The State Immunity Act 1978 should be disapplied where it conflicted with the EU Charter.

 

Right to fair trial

Diplomatic immunity

Case    Al-Malki and another v Reyes and another [2013] IRLR 929, EAT

Statute reference         Diplomatic Privileges Act 1964; European Convention on Human Rights, Art 6

Facts    R and S were employed by A, who was a member of the diplomatic staff of the Saudi Arabian mission in London. They brought claims against A in the ET. The ET accepted R and S’s argument that A’s reliance on diplomatic immunity denied them the right of access to a court or tribunal. A appealed to the EAT.

Decision          1. The appeal was allowed.

2. The ET had failed to adequately identify and express the underlying rationale for a plea of diplomatic immunity. It had wrongly considered that the seriousness of the claims was relevant in considering proprortionality.

3. the assertion of diplomatic immunity had not been a breach of Article 6, ECHR.