Employment Law lec 3- Prohibited conduct: discrimination arising from disability Flashcards

Question

claim form in other words?

Answer 1

And last procedural req = claimant form and time limt- same for ud and rp = et1 form- and two key section in et1 form = s.8 where have to fill in type and details – is it ud if so why and s.9 if u succeed how much do u want?- do u want reinstatement /reganement etc- so et1 form governed by s.3 employment tribunal ct- know procedures a bit dull, but increasing emphasies on employability-nee to know precudeure and praffical if work in law firm

Answer 2

(ii) serve the ET1 form on both the defendant employer and the ET Upon receiving an ET1 form, the defendant employer should then: (i) complete the whole of an ET3 form, but the key section is: 6: Response; and (ii) serve the ET3 form on both the worker and the ET

Answer 3

Et1 firm if bring claim- 1 copy on employer defendant and 1 copy on employment tribunal Then the defendants on recieveing et1 form complies et3 folrm – s.6 where employer gets write their side of story- serve 2 people, serbe on the need to correct employee cos its WORKER

Answer 4

Time limit: S 123(1) EA 2010: [discrimination] proceedings … may not be brought after the end of - (a) the period of 3 months starting with the date of the act to which the complaint relates, or (b) such other period as the employment tribunal thinks just and equitable

Answer 5

Therefore, the time limit for a discrimination claimant to bring a claim (by serving an ET1 form on both thace employer and the ET) is 3 months beginning with the date of the discriminatory act

Answer 6

so its 3 months but agreed s.11 employes believe to easy for discim claimants is that courts generous innextening 3 mo th time limit to discrim c’s. and reason is , If youre discrimated against, its upsetting, its stressful. And tribunal ccepts tht people might not therfor be rushing to tell publcia bout humiliating experience. So if c plucks up coruage 4 months time limit even after expiry of 3 mon th time limit.so in terms of our application, keep bancig

Answer 7

Application: UD claim form and time limit: We should again remember that we can only achieve half the marks available in a problem-style question even if we explain all relevant law perfectly, and that we can only receive any of the other half of the available marks if we then apply that law to the question facts We are not usually told which form any claimant has used, in which case all we can really write is that they must use an ET1 form RELEVANT POINT TO MENTION USING ET1 FORM

Answer 8

So as not to lose easy marks, we should not say nothing but should write eg ‘no information is provided on claim forms but X should be advised to use an ET1 form’ We are usually given specific dates in the question scenario, so we can usually apply the time limit by giving precise dates

Answer 9

So as not to lose easy marks, we should not write eg ‘X still has time to claim discrimination’ but ‘X was dismissed on 26 July and we’re told it is now 9 August so X has a further 2.5 months, until 25 October, to bring her discrimination claim, but we would encourage X to serve an ET1 form on both the defendant employer and the ET as soon as possible’

Answer 10

Try and fit as much lae and app as u can. | THROW IN THOSE PROECUDRAL SLIDES FOR PROB STYLE Q

Answer 11

Let’s now begin our consideration of the 1st of the 2 of the 6 types of PCo which relate specifically to disability, namely: S 15: Discrimination arising from disability and let’s do so by, as usual, going to the primary source, the statute

Answer 12

As usual need to get used to fact starting point LOOKING AT STATUTE AND CASE LAW

Answer 13

S 15 EA 2010: Discrimination arising from disability: Let’s tackle an activity which emphasises the importance of the specific wording of s 15(1)(a)

Answer 14

(1): A person (A) discriminates against a disabled person (B) if: (a) A treats B unfavourably because of something arising in consequence of B’s disability and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim (2) : Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability

Answer 15

possible defences

Answer 16

Proprotianility

Answer 17

Proprotianility – know whilst uk courtd talk reasonableness, Strasbourg and eu of justice have for many years been referring as to propritonality.

Answer 18

Because echr and eu law were incorp eu law, the uk court and uk stat includes references now to propritonality as much as if not more than reaosnablesnes, and legitimate aims , will be familiar that any restriction any of our righs eu rights has to be in accordance with law has to follo leg aim and has to be proportiane, so that’s where that’s come from. That’s come from infleucen partic Strasbourg

Answer 19

2nd one would u say 2nd defence more likely to apply to disable person who has physical impairment, or disabled person who has a mental impairment. Has to be mental isn’t – mental more chance d able to rely on 15 2-.

Answer 20

Lecture 3 Activity 1: Let’s consider the following scenario: Worker B has multiple sclerosis (MS) and has been off sick for 3 months. Employer A dismisses B. If B were to claim against A under s 15 EA, what reason do we think B should give in their claim form for their dismissal by A?

Answer 21

Answer: The point is that it is important that B avoids saying they were dismissed because they have MS Instead, B should argue they were dismissed because they were off sick for 3 months and that the sickness arose in consequence of their MS

Answer 22

Its important to say that or not to say that they were dismissed bc have ms – important get wording right LOOK BACK AT WORKING - arising in consequence of rather than bc of disability- have to be really careful what reason given in et1 form

Answer 23

Comparator Unlike the PCos at sections 13 (direct discrimination) and 19 (indirect discrimination), which require a comparator, the requirement for a comparator is not so great for the PCos at sections 15 and 20

Answer 24

This can be seen if we contrast the wording of: s 13(1): ‘.. less favourably than ..‘ (ie requires a comparator); with s 15(1)(a): ‘.. Unfavourably ..’ (ie does not require a comparator)

Answer 25

1 few difficulties for worker= c has to choose COMPARATOR-

Answer 26

and you can see in wording that comparot much more relevant to direct discrim in s.13 than to 2 prohibited conducts that were looking at today.

Answer 27

So if u look at wording of direct discrim it says that u need to prove treared less favourably than someone else!- so that clear comparison

Answer 28

so in direct discrim claim see next week , up 2 c to decide should I use real person as compaort or hypothetical compartor some1 who doesn’t exist an imaginary person, who I will presume is faced with all the circumstances I am, except for point im complaining about ,

Answer 29

– and sometimes see next week in case, tribunal will throw out tribunal claim if wrong comparotor- can be important but its less impprtant for 2 types of prhib conduct look at today- so instead of saying les favoruabyl than, see unfavourably still element of comparison but not as blatent, req for comp not so huge.

Answer 30

Burden of proof Let’s not forget that we agreed in lecture 1 that the standard of proof required for all EA discrimination claims favours the claimant

Answer 31

S 136(2) states that the claimant needs only to convince an ET that there are facts from which the ET could decide that discrimination occurred

Answer 32

By contrast, the defendant employer must then leave the ET in no doubt at all that discrimination did not in fact occur

Answer 33

Doesn’t matter which type of prohib conduct ur claim relates to, your budern of proof in balance, remains the same, remember saying how imbalanced it is, so when we looked at b.op with ud rp it was kind of 50/50 both d and c had same kinda threshold , not so with discri law, which evr type of prohib claimant youre claimin gin relation to, it’s a much lower threshold for claimant rather than defendant,

Answer 34

so s 136 2 of ea – says c r.a.w in other words c only need to prove COULD BE that they were discriminated against its POSSIBLE not even that its probably but that its possible, its not the same for the d. NOT POSSIBLE OR PROBABLE BUT THAT THERE IS NO DOUBT AT ALL THAT THEY DISCRIM AGAINST C- so c bop low , d employers bop is hjigh as confirmed in case next slide

Answer 35

In Barton v Investec Securities Ltd 2003,

Answer 36

the EAT confirmed this high standard proof for the defendant, requiring the defendant employer to prove that ‘in no sense whatsoever’ did it discriminate against the claimant

Answer 37

NO SENS WHATSOEVER C = POSSIBLE E = NO SNESE WHATSOVER

Answer 38

Is there any defence to s 15? A defendant employer has 2 potential defences to a s 15 claim from a worker, which are contained within the wording of: (i) s 15(1)(b); and (ii) s 15(2) So yes there is 2 defence under these sections

Answer 39

(i) We have seen that s 15(1)(b) gives as the 1st potential defence: A cannot show that the treatment is a proportionate means of achieving a legitimate aim In our Employment Law 1 module, we saw that an ET applies the Iceland 1981 band of reasonable responses test to an employer’s conduct in claims such as UD or RP However, an ET does not apply this reasonableness test in discrimination cases Instead, an ET applies the PROPORTIONALITY TEST

Answer 40

s.15 1 b says that if defenct – ca show treatement is porop etc= justification- so member ud case of Iceland resoanble resposnse = cos ea recent act- tribunal applies proportionality rather than reasonableness.

Answer 41

Proportionality is a concept which has long been applied by judges in continental Europe and which was brought to UK law through the incorporation of both EU law through the European Communities Act 1972 and, especially, the ECHR through the Human Rights Act 1998

Answer 42

Since the EA was passed as recently as 2010, the concept of proportionality features heavily in its wording, s 15(1)(b) being a good example

Answer 43

An ET will 1st ask itself whether a defendant employer was pursuing a legitimate aim when it allegedly breached s 15 (ie did the defendant have a good reason for breaching s 15, and can it argue a causal link between its breach and its legitimate aim?)

Answer 44

So et will first ask self whether D employer was pusing a leg aim- such as needing to thive as business, needing to avoid insolvency.. Or did the df have good reason andcould argue a causal link btw its breach and legit aim.

Answer 45

If the ET is satisfied the defendant employer was pursuing a legitimate aim, it will then ask itself whether the defendant employer could have achieved that legitimate aim in a more proportionate manner (ie in a way that would have avoided treating the claimant worker unfavourably) that wouldn’t have caused detrimate to the c e.g c dismissed. Could the employer achieve its orbitley elgitmate aim without having dismiss employee or worker

Answer 46

(ii) We have seen that s 15(2) gives as the 2nd potential defence: Subsection (1) does not apply if A shows that A did not know, and could not reasonably have been expected to know, that B had the disability

Answer 47

This defence is only really available where the disabled person has a mental impairment (eg depression, anxiety or stress) as it would be difficult to argue ignorance where the disabled person is eg in a wheelchair

Answer 48

having being blissfully unaware that the c was disabled- and as we agree that’s highly unlikely to apply to physical disab if someone wheelchair = obv So only really avail 2nd defence = mental really

Answer 49

Lecture 3 Activity 2: In lecture 2 Activity 2, we considered the following scenario: Keira, who works in the call centre of a bank, has been diagnosed as suffering from seasonal affective disorder (SAD). This means that her mood is affected by the seasons, and she gets depressed during the winter months. There is medication available for SAD, but Keira does not like the side effects so she doesn’t take the medication.

Answer 50

Def of disab we considered this activity Medication avil but didn’t like side effretcs] she was disabled Power v panosonic- assessing whether physical mental impairment long terma dverse affect they ignore medication or hpsyio- did it affect –yes disabed

Answer 51

We decided Keira is disabled under the s 6 EA definition: Physical or mental impairment?: Mental: She is depressed (SAD) Substantial and long-term adverse effect?: SAD is a progressive illness and therefore substantial and long-term. The fact Keira doesn’t take her medication will be disregarded (Power 2003) Ability to carry out normal day-to-day activities?: Again, SAD is a progressive illness, so yes Conclusion?: Keira has SAD so she is disabled

Answer 52

Let’s now read the following extended facts & answer the question: Keira’s colleagues at work think she’s moody and unfriendly, which they find all the more unacceptable because it’s now the run up to Christmas. They’ve complained to their line manager, Sukhjinder, about her. As a result, Sukhkinder, on behalf of the bank, has emailed Keira with a 1st oral warning that she needs to interact more with her colleagues. Providing reasons, evaluate whether Keira may bring a claim under s 15 and, if so, whether she is likely to succeed

Answer 53

Answer: Providing reasons, evaluate whether Keira may bring a claim under s 15: Is Keira disabled, as required by s 15(1)(a) if she is to be entitled to bring a s 15 claim? Yes, because, as we agreed in lecture 2 activity 2, Keira satisfies the s 6 EA definition of disability, because she has been diagnosed with SAD which is a progressive illness She satsifed all req s6 def of disab

Answer 54

Yes, the 1st oral warning arose due to Keira’s moods, which, she will argue, were due to the SAD with which she has been diagnosed Therefore, Keira is likely to be able to convince an ET that she has received unfavourable treatment (her 1st oral warning) which arose in consequence of her disability Keira should therefore be permitted to bring a s 15 claim against the bank WHICH AROSE- HAVE TO GET THAT WORDING RIGHT.

Answer 55

However, as we have agreed, there are 2 possible defences to a s 15 claim from Keira upon which the bank might rely, namely: (i) S 15(1)(b): The 1st oral warning was a proportionate means of achieving a legitimate aim; and (ii) S 15(2): The bank did not know, and could not reasonably have been expected to know, that [Keira] had the disability

Answer 56

So lets consider avail 1st potential (i) S 15(1)(b): The 1st oral warning was a proportionate means of achieving a legitimate aim: The bank would presumably argue that the legitimate aim was maintaining a happy and motivated workforce, and an ET may well accept this So presumably .. 1st point- et would accet that any workplace should be ahppy Was it propritiante to acieve this aim - might u have achieved that wihout upsetting her – did u have to issue with 1st oral warning – limtie info had about kiera there was no suggestion that they had convo with her, it looked like straight warning and shes in shock, so If it’s the latte,r then almost certainly tribunal will say cant rely on this defence., so what about 2nd piss

Answer 57

The question for the ET would therefore be whether issuing Keira with a 1st oral warning was a proportionate way for the bank to pursue this aim

Answer 58

The ET is likely to decide this was disproportionate because there is no evidence that the bank 1st discussed Keira’s moods with her informally before initiating a disciplinary process

Answer 59

(ii) S 15(2): The bank did not know, and could not reasonably have been expected to know, that [Keira] had the disability: We’re not told on the facts whether the bank knows that Keira has been diagnosed with SAD All we’re told is that it’s now the run up to Christmas and that SAD can cause depression during the winter months Therefore, given that SAD is a non-visible mental impairment, it’s entirely feasible that the bank might persuade an ET it is entitled to rely on the s 15(2) defence, unless Keira can prove she informed the bank of her diagnosis with SAD

Answer 60

Yes it is could be that didn’t know Its poss that she didn’t tell them Bein mental impriment – the abail is whwether or not kiera had told bank or not – SO IF ORALLY IT WOULD BECOME HER WORD AGAINST HIS BUT SHE SHOULD HOPE TNHAT in email Seminar – looks great for worke,r the emphasis of discrim law- but proving things can be such an issue- entirely possible that she said had sad but manager could say cnat remebr

Answer 61

Conclusion: All turns on whether Keira let the bank know she has been diagnosed with SAD If she did, she is likely to succeed with a s15 claim, especially since the burden of proof will be on her side and she will have no difficulty proving that she received a 1st oral warning as Sukhjinder emailed it to her If she didn’t, then an ET is likely to allow the bank to rely on the s 15(2) defence

Answer 62

So in conclusion r.aw and IDEALLY IN WRITING AND IF SO SHE IS LIKELY TO SUCCED. If not then tribunal likely bank to rely on s.15 2

Answer 63

Let’s now turn our attention to the 2nd of the 2 of the 6 types of PCo which relate specifically to disability, namely: S 20: Duty to make (reasonable) adjustments

Answer 64

and let’s do so by, as usual, going to the primary source, the statute

Answer 65

We should note that s 20 is a much longer section than s 15, and imposes a wide duty on employers

Answer 66

Subsections 20(1) and 20(2) impose on employers a duty to comply with the following 3 requirements at s 20(3), s 20(4) and s 20(5):

Answer 67

S 20(3): ‘[….] a requirement, where a provision, criterion or practice of [the employer]’s puts a disabled person at a substantial disadvantage […] in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.’

Answer 68

Show u 24 almost identical wording and 25- very ltitle diff btw 3 but difference in sub section 3 - APROVISON CRITERION OR PRACTICE- WHAT IS THAT? – what is it? PCP – rule or policy

Answer 69

Lecture 3 Activity 3: Can we think of any examples of what might amount to a s 20(3) ‘provision, criterion or practice’ (PCP)?:

Answer 70

Answer: A PCP is essentially a rule or policy Examples include: (i) : a policy that working from home is not permitted; and (ii) : a rule that office hours are strictly 8am - 5.30pm

Answer 71

e.G if employer policy ot alowd work from home# no flexibility e.G So in essence sub section3 of s.20 relates to rules and polciies next section, provision cr

Answer 72

S 20(4): ‘[..] a requirement, where a physical feature puts a disabled person at a substantial disadvantage […] in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.’

Answer 73

Provision etc chsnged to physical feature- otherwise its almost identical Avoid disad etc = same

Answer 74

s. 3 – rules and policies | s. 4 phsyicl features

Answer 75

Lecture 3 Activity 4: Can we think of any examples of what might amount to a s 20(4) ‘physical feature’?:

Answer 76

Answer: S 20(10) defines a physical feature as: (a) a feature arising from the design or construction of a building; (b) a feature of an approach to, access from or access to a building; (c) a fixture or fitting, or furniture, furnishings, materials, equipment or other chattels, in or on premises; or (d) any other physical element or quality

Answer 77

The wide definition of a physical feature might therefore include some steps on the approach to a building where there is no ramp

Answer 78

= physical features So it might be feature arising from deisgn etc So it’s a wide def e.g. someon disable no ramp to get up steps for wheelchair

Answer 79

S 20(5): ‘[…] a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage […] in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.’

Answer 80

s.5 = provision of auxillary aid what is that

Answer 81

Lecture 3 Activity 5: Can we think of any examples of what might amount to a s 20(5) ‘auxiliary aid’?

Answer 82

Answer: S 20(11) tells us that an auxiliary aid includes an auxiliary service

Answer 83

This wide definition of an auxiliary aid might therefore include: (i) an adapted keyboard and screen for a blind person; (ii) a modified chair; (iii) a handrail; or (iv) a disabled toilet

Answer 84

These would come under auxillary aid than physical feature Provided u apply correctly Phycial feature think of buling itself Whereas auxillary aid is something designed in that building to help that person

Answer 85

The key subsections of s 20 are therefore (3), (4) & (5) We might note that all 3 subsections require the claimant’s disadvantage to be ‘substantial’-5 noted wording same for all and disadvantage must BE SUBSTANTIAL NOT MILD!

Answer 86

Lecture 3 Activity 6: Can we think of any examples of what might amount to putting a disabled person at a ‘substantial’ disadvantage for each of: (i) s 20(3); (ii) s 20(4); and (iii) s 20(5)?

Answer 87

Answer: (i) An example re s 20(3) might be where an employer introduces a strict policy of 8am - 5.30pm office hours and a worker must leave at 3pm every Wednesday because she needs kidney dialysis or treatment as a diabetic, so she is placed at a substantial disadvantage 20 3 – pcp e.gsssss

Answer 88

(ii) An example re s 20(4) might be where an employer moves its office to the 5th floor of a new building where there is a staircase but no lift and a worker is confined to a wheelchair so cannot get upstairs, so she is placed at a substantial disadvantage 20 4 pf = e.gssss

Answer 89

(iii) An example re s 20(5) might be where an employer has plug sockets and light switches fitted 6 feet above the ground and a worker is confined to a wheelchair and needs the plug sockets and light switches to be lowered, so he is placed at a substantial disadvantage

Answer 90

S 20(7) EA clarifies that an employer cannot require a disabled person to pay for any adjustments:

Answer 91

A person (A) who is subject to a duty to make reasonable adjustments is not (subject to express provision to the contrary) entitled to require a disabled person, in relation to whom A is required to comply with the duty, to pay to any extent A’s costs of complying with the duty

Answer 92

cant say look well lower plug sockets but youll have to pay- this section prevents that from happening

Answer 93

Whilst the duty to make (reasonable) adjustments is covered by s 20,

Answer 94

applies to applicants doe employment as well as to existing worker. There is no req that employers incur unreasonable costs in making the adjustments - corry v merseyrail electrics.

Answer 95

corry v merseyrail electrics.- look in book

Answer 96

secretary of state for work and pensions v alam

Answer 97

it is worth masrering cocnept of duty to makew reasonable adjust as it is difficult to imagin a q about disab discrim that does not include it

Answer 98

q of whether an employer had made suffic arrangments in light of their knowledge is one of fact for employment trib

Answer 99

-ridour v tc group | archibald v fife council?

Answer 100

look in book

Answer 101

So although duty to make r a covered by s.20-theclaimant actually claims undr s.21 the right of a worker to claim re such a breach is covered by s 21

Answer 102

Therefore, any claim for breach of s 20 is brought under s 21:

Answer 103

S 21(1): a failure to comply with the first, second or third requirement is a failure to comply with a duty to make reasonable adjustments = S.3 , 4 ,5

Answer 104

S 21(2): A discriminates against a disabled person if A fails to comply with that duty in relation to that person

Answer 105

Comparator As we’ve already agreed, unlike the PCos at sections 13 (direct discrimination) and 19 (indirect discrimination), which require a comparator, the requirement for a comparator is not so great for the PCos at sections 15 and 20 This can be seen if we contrast the wording of: s 13(1): ‘.. less favourably than ..‘ (ie requires a comparator); with sections 20(3) and 20(4): ‘.. puts a disabled person at a substantial disadvantage ..’ (ie does not require a comparator)

Answer 106

s.13= c s.203 , 4 = no c Compaprotr applies most to direct discrim Still degree of comp but c not required by et to identify compa so rather than lrss fav in s.20 req is rule or regulation or physical feature or auxxillary puts disabled person at substandtial disad So language still involves degree of compa

Answer 107

repeat from previous slides

Answer 108

Is there any defence to s 20? We agree that a defendant employer has 2 potential defences to a s 15 claim from a worker, but is there any defence to s 20? By contrast, at least in terms of ‘justifications’, a defendant employer has no potential ‘defences’ to a s 20 claim However, a defendant employer does have 2 potential counter-arguments which, it could be argued, equate to defences

Answer 109

So to defences for s.15- are there any defences for s.20 but instead d and employer can come up with counter arguments rather than justfication

Answer 110

The 2 counter-arguments a defendant employer may raise with an ET are either that it: (i) complied with the relevant requirement; or that it: (ii) would have complied but for the fact it was unreasonable for it to have been expected to have made the relevant adjustment

Answer 111

Those 2 counter arguments 1 weve complied with requirement 2 we would have complied but unreasbobe for us to be expected to mke that adjustment So theyre more counter argments that adjustments

Answer 112

(i) The defendant employer complied with the relevant requirement: When considering this 1st counter-argument, namely that the employer has complied with the relevant requirement, an ET will consider the wording of s 20(6) and s 20(9) we fulfilled our duty what are we tlkin about

Answer 113

``` S 20(6) relates to the 1st - s 20(3) - and 3rd - s 20(5) - requirements and states that: so sub 6 relates to 1st and 3rd req pcp and aux aid – ```

Answer 114

‘Where the first or third requirement relates to the provision of information, the steps which it is reasonable for A to have to take include steps for ensuring that in the circumstances concerned the' information is provided in an accessible format.’

Answer 115

S 20(9) relates to the 2nd - s 20(4) - requirement and states that: s. 9 in relation to physical feature

Answer 116

‘In relation to the second requirement, a reference in this section or an applicable Schedule to avoiding a substantial disadvantage includes a reference to - (a) removing the physical feature in question, (b) altering it, or (c) providing a reasonable means of avoiding it.’

Answer 117

(ii) The defendant employer would have complied but for the fact it was unreasonable for it to have been expected to have made the relevant adjustment: When considering this 2nd counter-argument, namely that the defendant would have complied but for the fact it was unreasonable for it to have been expected to have made the relevant adjustment, an ET will accept that each employer is different and will therefore consider each case on its own merits

Answer 118

When considering this 2nd counter-argument, namely that the defendant would have complied but for the fact it was unreasonable for it to have been expected to have made the relevant adjustment, an ET will accept that each employer is different and will therefore consider each case on its own merits

Answer 119

An ET recognises each employer is of a different size and possesses different resources

Answer 120

Second defence- employer would have complied but would be unreaosnble to expect Tribunal will look at merit of this counter arg on case by case 1 big factor who is this employer- LOADS OF MONEY or tiny firm hasn’t got much money Tribunal will look at circum of this emplouer

Answer 121

For example, an ET might consider it reasonable for a multi-national company to be expected to install a lift or a ground floor office, but consider it unreasonable for a small newsagent to be expected to do likewise

Answer 122

By contrast, an ET might consider it reasonable for even a small newsagent to be expected to change a work pattern or policy, as this may well involve very little or even no cost at all

Answer 123

Lets say bt and they have 1workers accid = wheelchair not be unraosnabel for bt to install life- big company Whweras if small newsagenet unreaosnbale to expect owner to install lift So tribunal will look at identity of d employer- is this employer with loads of m oney or is this employer for whome permanely living on breadline and not much disposable cash Hw if somrthing simple like all they ahd to do is change the work policy e.g why not make excpetion accident allow them tow ork from hom – so even smll news agent may have breaxhed s.20 to make resoanble adjument ‘DEOENS ON WHAT ADJUSTMENT S AND WEALTH OF THE EMPLOYER

Answer 124

We may recall from studying our Employment Law 1 module that, when considering UD claims, an ET is not permitted to substitute its own view re whether a dismissal was unfair and, instead, has to assess objectively whether the dismissal is within the rage of reasonable responses which at least 1 other employer might also have followed (Iceland 1982) SOMETHING ELSE MIGHT RECALL- I decindign whether dismaill procedure followed fair 0 wheher it felt that – atleast 1 other employer might have followed that samr dismaill procedure. That the disimall priceure followed was within range of reasonable response whichalteast 1 other employer might have followed

Answer 125

However, by contrast, when considering s 20 claims, an ET is permitted to substitute its own view re whether it might be reasonable for an employer to be expected to make an adjustment Contrast r.a.w – is allowed to ask what would we have done in that sit, to determine might eb reasonable for employer to make that adjustment- so fi we were employer could we make that djusyent Gonan finish look at case law in s.20 = last 2- yrs or so

Answer 126

The following cases demonstrate that an ET considers on a case by case basis the question of whether an employer has breached s 20:

Answer 127

Kenny v Hampshire Constabulary 1999; - IMPORTANT CASE O’Hanlon v Revenue & Customs Commissioners 2007; Fareham College Corporation v Walters 2009; and CC of South Yorkshire v Jelic 2010 Let’s now consider each of these cases in more detail

Answer 128

Kenny v Hampshire Constabulary 1999: Ian Kenny suffered from cerebral palsy He was therefore physically disabled However, his intellectual capacity was unimpaired He graduated with IT qualifications In October 1996, he applied for the post of IT Programmer for the Hampshire Constabulary (HC) The HC offered him the post, subject to HC feeling it was able to make the arrangements required to accommodate his needs He explained he did not require special equipment to be fitted in the toilet but he did need to be accompanied to the toilet and assisted, although he didn’t specify the details of this assistance

Answer 129

On his word processor, Ian Kenny had a statement setting out the assistance he required, which he was able to show to 3rd parties as appropriate, which read: ‘During the working day I need assistance when going to the toilet. This consists of holding the toilet bottle for me, emptying it when I have finished, and helping me to sit back afterwards. I also require some assistance at lunch-time to open food packets and get the food out for me, but not with feeding.’

Answer 130

At no stage did Ian Kenny pass this statement to HC The words ‘holding the toilet bottle for me’ actually meant that Ian Kenny needed someone to accompany him to the toilet and to hold a bottle in the correct position to enable him to place his penis in the neck of the bottle so that he could urinate into it The bottle would then be emptied and IK would have to be lifted back into his wheelchair The Department of Social Security had classified Ian Kenny as unemployable, but he refused to accept this, and didn’t claim the severe disablement allowance to which he was entitled HC knew about the classification but was satisfied that Ian Kenny’s previous work history demonstrated he could in fact work satisfactorily provided that his toilet needs were met -He dint pss statement He was holding back nfo hadn’t told dss classified as uneplyable – he ddint claim sever diabiliy allowance

Answer 131

Sergeant Kelly, who knew Ian Kenny, suggested his needs could be met by volunteers from within the IT department, and he prepared a rota of people who were willing to help, but Sergeant Kelly omitted to specify the exact nature of the assistance that would be required All bar 1 volunteer withdrew from the rota upon learning the true extent of the assistance they would be expected to provide, and that 1 volunteer only worked 2 days a week HC also discovered that any volunteer 1st required half a day’s training in the technique used for lifting Ian Kenny from and back onto his wheelchair, to prevent personal injury to that volunteer HC explored but ruled out other options, such as Kenny working from home or his mother joining him at work as his helper

Answer 132

In December 1996, HC felt it had no alternative but to withdraw the conditional job offer to Ian Kenny and dismiss him Ian Kenny claimed against HC under the then DDA 1975 The EAT: ruled that, although Ian Kenny was disabled and the only reason why HC did not confirm his employment was the non-availability of the required personal care support, and in particular, the physical assistance required in the toilet, so the reason for his dismissal related to his disability, HC had shown a substantial reason, material to the circumstances of the case, which justified its decision not to employ him The EAT was satisfied that HC had given full and proper consideration to all the options and was justified in concluding that it was not safe to employ Ian Kenny and rely on other employees assisting him in the toilet

Answer 133

Reason for dismissal related to disability Et satisfied not safe toe mply and rely on other wmploeys So if we were to refer to Kenny- relefance authority FOR CAN BE LIMIT TO PERONSAL SERVICE EMPLOYER EXPECTED TO RPOVIDE- BUT ONLY WHEN GIVEN 1ST PROPER THPUGH – they really did try make it work that’s why appeal tribunal worked inf avour but if dint the guy wpuld win. The appeal tribunal drew distinction s.20 ajustments and provison of personal carers. Tpilet s.20 but s.20 didn’t exten to prvid carer.

Answer 134

Therefore, although it predates the EA 2010, we can use Kenny 1999 as our authority for the fact that there can be a limit to the kind of personal services an employer can be expected to provide, provided full and proper consideration has been given to all the options

Answer 135

In Kenny 1999, the EAT drew a distinction between: (i) the duty to make reasonable adjustments; and (ii) the provision of personal carers Here, providing a disabled toilet fell within the s 20 duty to make (reasonable) adjustments, but providing a carer did not

Answer 136

O’Hanlon v Revenue & Customs Commissioners 2007: Mrs O’Hanlon, who was disabled, worked for HM Revenue and Customs (HMRC) HMRC’s sick pay rules provided that anyone absent through illness would receive full pay for 26 weeks in any 4-year period, and, thereafter, half pay for the next 26 weeks, andf, thereafter, the pension rate of pay Mrs O’Hanlon had lengthy absences from work, most of which were related to her disability She claimed that she ought to have been given full pay for her absences and that the failure to make such payments amounted to the then equivalents of both s 15 discrimination arising from disability and s 20 failure to make (reasonable) adjustments

Answer 137

The ET: ruled that: (i) there was no s15 discrimination and that, even if there was, it was justified; and although the effect of the sick pay rules was to subject her to a substantial disadvantage, the s 20 adjustment Mrs O’Hanlon sought was not a reasonable one, Mrs O’Hanlon appealed The EAT: upheld the ET’s ruling that HMRC had not discriminated against Mrs O’Hanlon either: (i) re s15( because, although the ET had erred in law in concluding there was no s15 disability related discrimination, it had correctly found that it was justified due to the considerable cost and the disincentive for Mrs O’Hanlon otherwise to return to work); or Said not discrim in regards s.15 and 20

Answer 138

(ii) re s 20 (because an employer should not have to increase sick pay for all its employees just because a disabled claimant was suffering financial hardship) We can therefore use O’Hanlon 2007 as our authority for the fact that there can be a limit to the kind of adjustments which a claimant worker can reasonably expect a defendant employer to make under s 20

Answer 139

Just say authority – r.a.w – similar point to kenny

Answer 140

Fareham College Corporation v Walters 2009: On 3 June 2004, Fareham College Corporation (FCC), a further education college, employed Ms Walters as a computing lecturer FCC employed her on a full-time contract of 37 hours per week, although the contract stated that FCC could require her to work for up to 40 hours per week provided it rewarded her with time off in lieu for the additional 3 hours worked Her contract provided that her hours were 8.45am to 9pm but FCC could only ask her to work until 9pm twice a week At some point during 2004, Ms Walters developed the condition known as ‘plantar fasciitis’, which restricted her mobility as it caused pain in the sole of her feet when standing or walking

Answer 141

Ms Walters was off sick with plantar fasciitis for 28 days from 11 Jan 2005, and for further shorter periods in Nov and Dec 2005 In the same year of 2005, FCC had begun to have concerns as to her performance as a lecturer On 31 Jan 2006, FCC held a meeting re her performance (which the ET saw as a reasonable step for FCC to take) Ms Walters raising a number of health issues at this meeting From Feb 2006, she began a ‘permanent sickness absence’ FCC sought news from her re when she might return to work On 18 July 2006, an occupational health doctor reported that she might be able to begin a phased return to work from Sep 2006 On 17 Aug 2006, FCC met with Ms Walters again

Answer 142

On 29 Aug 2006, the Principal of FCC sent Ms Walters a letter inviting her to another meeting on 7 Sep 2006 At the meeting on 7 Sep 2006, the Principal refused her request to be granted the phased return to work granted by the occupational health doctor, and dismissed her Ms Walters claimed against FCC under the then DDA 1975 The ET: found for Ms Walters as FCC, in refusing to allow a phased return to work, had not made reasonable adjustments The EAT: upheld the ET’s finding in favour of Ms Walters, finding that, as in the case of Ms Walters, a dismissal may be so bound up with a failure to make reasonable adjustments that the dismissal is itself an unlawful act

Answer 143

We can therefore use FCC v Walters 2009 as our authority for the fact that, if an employer decides to dismiss an employee, and a reasonable adjustment could have been made which could have avoided the dismissal, the dismissal itself will be an act of disability discrimination as a consequence of failing to make reasonable adjustments

Answer 144

Chief Constable of South Yorkshire v Jelic 2010: Mr Jelic, an officer in the South Yorkshire police force, suffered from chronic anxiety syndrome which often prevented him from being able to perform normal policing duties Mt Jelic produced medical evidence to show that his condition was likely to be permanent and would prevent him from being able to come into face to face contact with members of the public The Chief Constable responded by medically retiring Mr Jelic Mr Jelic brought a disability discrimination claim against the Chief Constable, arguing he should have offered Mr Jelic the chance to swap job roles with an employee who did not have duties which would require him to confront the public

Answer 145

The ET: found for Mr Jelic because the Chief Constable had not properly considered the police force’s duty to make reasonable adjustments and had demonstrated a ‘spectacular failure to consult’ with Mr Jelic when swapping him to a different and non-confrontational role would have been an easy and reasonable adjustment to make The Chief Constable appealed, arguing he didn’t consult with Mr Jelic because he already knew that there was no non-confrontational role available The EAT: also found for Mr Jelic We can therefore use Jelic 2010 as our authority for the fact that the scope of reasonable adjustments includes a requirement to consider swapping job roles between workers

Answer 146

Let’s end today’s lecture by reminding ourselves of the answer structure for a problem-style question we agreed in TP 1 because it has equal relevance for a problem-style question in TP 2 We’ll have the opportunity in seminar 2 to apply this answer structure to a problem-style question on: S 15: Discrimination arising from disability; and S 20: Duty to make (reasonable) adjustments

Answer 147

We’ll have the opportunity in seminar 2 to apply this answer structure to a problem-style question on: S 15: Discrimination arising from disability; and S 20: Duty to make (reasonable) adjustments

Answer 148

Seinar problem style q s.15 s.20 – same 1 used tp1 – venue claim form time limit- elig req – terms of dscrim need to identify 1 0f 9 protected charactics 6 types of rphivb ondduct – lets see same answer structure sem ine 2

Answer 149

Reminder of our recommended answer structure: For each potentially relevant type of claim: Background / definition / legal position /options: Law: background & definition, Application: legal position & options Venue: Law: Application: Claim form and time limit : Law: Application: Eligibility requirements: Law: Application: Further requirements: Law: Application: Burden of proof: Law: Application: Likely awards if success possible: Law: Application: Claimant’s prospect of success: Law: Application:

Answer 150

Review: Having completed lecture 3, we should now be able to summarise the 6 types of prohibited conduct (Pco) in the EA 2010, the 4 main types being: S 13: Direct discrimination; S 19: Indirect discrimination; S 26: Harassment; and S 27: Victimisation and to explain in detail, and to apply to a fictitious scenario, the 2 of the 6 types of PCo which relate specifically to disability, namely: S 15: Discrimination arising from disability; and S 20: Duty to make (reasonable) adjustments

Answer 151

Preview: Lecture 4: In lecture 4, we’ll consider in more detail 1 of the 4 main types of prohibited conduct, namely: S 13: direct discrimination (DD) and will ensure we are clear on the distinction between s 13 direct and s 19 indirect discrimination

Answer 152

Seminar 2: We have an activity to prepare in advance of seminar 2, in which we’ll reinforce our understanding of the 2 of the 6 types of PCo which relate specifically to disability, namely: S 15: Discrimination arising from disability; and S 20: Duty to make (reasonable) adjustments by applying our knowledge of the relevant law to a problem-style question on these 2 types of PCo

Employment Law lec 3- Prohibited conduct: discrimination arising from disability Flashcards

(177 cards)