Disability Discrimination - Time Limits

Where an employer omits to make a reasonable adjustment for a disabled person, when does limitation start to run? Limitation runs from a deliberate decision not to make an adjustment but when should time start to run where the employer failed to make any decision whatever?

In Matuszowicz v Kingston Upon Hull City Council, the Court of Appeal held that even where the omission was ongoing at the time of the claim but a future adjustment was still possible, the effect of Paragraph 3, schedule 3 of the Disability Discrimination Act 1995 was to create an artificial limitation start date. That was the date defined in paragraph 3(4)(b) as when the period expires within which he might reasonably have been expected to do the omitted act if it was to be done.

Where an omission is ongoing at the time of the claim, a Tribunal will have to determine the period during which a reasonable employer, under a duty to make an adjustment and intending to make it, would make the adjustment. Limitation starts to run when that period expires. Paragraph 3(4)(b) is not restricted to deliberate omissions.

[Thanks to Anthony Cutler, pupil barrister at 1 Temple Gardens, for summarising this case, and to Nick Siddall of Kings Chambers, who represented the Respondent, for telling me about it]

Statutory Dismissal Procedure

The EAT has held, in Zimmer v Brezan, that a step 1 dismissal letter must state that the employer is contemplating dismissal. If it does not, then any resulting dismissal will be automatically unfair.


HHJ Burke held that even though the words of the statutory dismissal procedure did not expressly require the employer to state, in writing, that it was contemplating dismissing the employee, it was desirable to construe the statutory procedure purposively so as to include such a requirement.

Disability Discrimination: EAT follows Malcolm

Last summer, the House of Lords re-wrote the law on disability discrimination, making it much harder for a Claimant to succeed (see bulletin 27/6/08). However, the case was decided in the context of housing law, and there has been doubt whether the same restricted approach would be adopted in employment cases.

At 10.30am today, in Child Support Agency v Truman, the EAT handed down a judgment confirming that the Malcolm approach does apply in employment cases.

HHJ Peter Clark held, at para. 22, that "In our judgment the narrower comparator favoured by the majority in Malcolm applies equally in the employment context. The wider comparator used in Novacold should no longer apply (unless and until the legislation is further amended by Parliament)."

The EAT added that they were not considering the impact of Malcolm on the phrase "for a reason which relates to the person's disability" - this will have to await another decision.

Employment Judges Sitting Alone

The (draft) The Employment Tribunals Act 1996 (Tribunal Composition) Order 2009, which is due to come into force on 6th April 2009, has been placed on the OPSI website.

It extends the types of hearings when an Employment Judge can sit alone, to include holiday pay claims under the Working Time Regulations 1998 (and some other very obscure statutory instruments).

This supplements the Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 (see bulletin 13/1/09) which, amongst other things, authorised Employment Judges sitting alone to hear Stage 1 equal value claims.

Norton Tool and Constructive Dismissal

Since 1976, tribunals have applied the controversial rule in Norton Tool v Tewson, which is authority for the proposition that employees are entitled to compensation for unfair dismissal for all of their contractual notice period, even if they found another job during that period or failed to mitigate their losses. This means that employees can benefit from double recovery, particularly when they have long notice periods.

In Stuart Peters v Bell, the EAT held that the same principle applies to constructive dismissals (as well as 'normal' dismissals). Although an appeal is unlikely in this case because of the small amounts involved, and because it would need the House of Lords to overturn Norton Tool, HHJ Burke concluded his judgment by expressing a hope that this principle might be reconsidered by the House of Lords when the opportunity arises.

Hot Stuff in the EAT

The Employment Appeal Tribunal admitted woolly hats as evidence of disability but, after hearing other evidence about underwear and thick overcoats, dismissed a claim that depriving an employee of his personal heater was discriminatory.

Mr Sawyer braved the breezy mid-20s temperatures of mid-August last year protected by no more than a heavy overcoat and two woolly hats, only to see his condition, that purportedly leaves him vulnerable to temperatures below 27 Celsius, dismissed as a disability in the EAT (Sawyer v Secretary of State for Work and Pensions). Mr Sawyer worked at Job Centre Plus and claimed for disability discrimination when his employer took away the personal heater that he had used (along with thick underwear, outer clothing and two woolly hats) to keep warm.

Spelling tests in tribunals?

The EAT has emphasised the importance of getting the spelling of the Respondent's details correct in the ET1.

In Anthony Chowles t/a Granary Pine v West, the EAT held that where a Respondent’s name had been misspelled and his address misstated on the ET1 (and that was the name and address to which it was posted by the Secretary), the claim had not been sent to him within the meaning of the Rules.

Accordingly, there was no need to enquire into the matter of fact of whether the intended Respondent had received the ET1. The usual consequences did not flow and, in particular, a default judgment that had been entered in the absence of a response was set aside.

The Claimant had been employed by Anthony Chowles but had entered the name 'Anthony Charles' on the ET1 and had made two errors in the address including omitting three digits from the postcode.

[Thanks to Anthony Cutler, pupil barrister at 1 Temple Gardens, for providing this summary]

Disability Discrimination - Reasonable Adjustments

Section 4A(3) of the Disability Discrimination Act 1995 provides that an employer is exempted from the duty to make reasonable adjustments if he did not know, and could not reasonably be expected to know, that someone is likely to be placed at a substantial disadvantage by a disability (my paraphrase). This defence is often used by prospective employers defending allegations of failure to make reasonable adjustments when (not) offering a job.

In Eastern & Coastal Kent PCT v Grey, the EAT has held that this requires each, not merely one, of the following four limbs to be satisfied, namely that:-

• does not know that the disabled person has a disability
• does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
• could not reasonably be expected to know that the disabled person had a disability; and
• could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

Michael Duggan's Case Index

Michael Duggan of Littleton Chambers has published the latest edition of his excellent case index. He has made it available to all - download it here.

NOTE: it is a large file and there is likely to be a lot of simultaneous demand to download it. Please try again later if it does not download immediately.

Care Workers - POVA List Unlawful

The House of Lords has, this morning, handed down a decision impacting on those advising or working in the care sector.

The case concerns care workers who look after vulnerable adults or children. Under current legislation, if the employer dismisses the employee because they have harmed (or placed at risk of harm) a vulnerable person, then their name must be included on a list held by the Secretary of State and they are banned from employment by any other care provider.

The problem is that people get placed on this list with little, if any, enquiry (and with no right to make representations). It takes many months for the appeal process to work, during which time the employee cannot work, and the majority of those who appeal succeed in their request to be removed from the list.

The House of Lords has held that the list is inconsistent with Article 6 of the European Convention on Human Rights, and has issued a Declaration of Incompatability. Of course, the consequence of such a declaration is that the legislation remains effective until amended by parliament (s4(6) of the Human Rights Act 1998), so it's all a bit meaningless, but it's a case that practitioners should be aware of.

R v Secretary of State ex p Wright & ors

Holiday Pay for Long-Term Sick Workers

The ECJ has, this morning, handed down its opinion in Stringer v HMRC (previously known as Ainsworth v HMRC. The judgment should be available this afternoon here, but for now, we simply have a Press Summary.

According to the Press Summary (which isn't entirely clear), the ECJ has held:

• a worker who is on sick-leave for the whole of an annual leave year is entitled to a period of four weeks' paid annual leave, despite the fact they are not actually at work. The national courts can decide whether the paid leave can be taken during that year, or whether it should be carried over to another year, but either way the employee is entitled to be paid at some point
• the right to paid annual leave is not extinguished at the end of a leave year if the worker was on sick leave for the whole of that year, or if he was absent on sick leave for part of the year and was still on sick-leave when his employment terminates

This is not going to be a popular decision with employers. The House of Lords will now give a final judgment, and (in the light of the ECJ opinion) will no doubt overturn the Court of Appeal's decision from April 2005 that the right to paid holiday leave did not accrue during periods of sickness absence.

[Thanks to Gillian Cumming of Just Employment Law for telling me about this]

TUPE Consultation

The EAT has decided, in Amicus v Glasgow City Council, that a transferee is not obliged to consult with transferred employees after a transfer, in relation to 'measures' it proposed taking in relation to them.

[Thanks to Lesley Murphy of Shepherd & Wederburn, acting for one of the successful Respondents, for telling me about this case.]

Employment Law Preview for 2009

I've just read Wragge & Co.'s employment law preview for 2009. It's so good, I'm sending the link around for everyone to read.

They've also produced a review of 2008, which is also worth a read.

Amendments to 2004 Procedural Rules

The Employment Tribunals (Constitution and Rules of Procedure) (Amendment) Regulations 2008 have been laid before Parliament. They make the following amendments to the 2004 procedural rules:-

• consequential amendments resulting from the Employment Act 2008, which repeals the existing statutory workplace dispute resolution procedures and makes changes to conciliation by Acas
• removing Employment Judges’ discretion not to issue a default judgment in certain circumstances;
• providing that, where electronic communications are used in public hearings, and oral evidence is given, the public must be able to see and hear all parties to the communication, and where the hearing is to be held in private and oral evidence is given the tribunal or Employment Judge must be able to see and hear all parties to the communication;
• clarifying provisions on the withdrawal and dismissal of proceedings, and a new rule providing for the automatic dismissal of proceedings, where the parties to an Acas settlement have confirmed in writing their understanding that the proceedings covered by the settlement will be dismissed and the claimant has withdrawn the claim;
• enabling an Employment Judge sitting alone to hear Stage 1 equal value claims

plus a whole host of minor and consequential amendments. The amendments take effect from 6th April 2009.

[Thanks to John Bowers QC of Littleton Chambers for telling me about this]

Striking Out Claims

[Thanks to Martin Fodder of Littleton Chambers, who appeared for the successful Appellant. Martin Fodder appears today at 2pm speaking on Update on Transfers of Undertakings in a live internet webinar.]

The EAT has handed down its decision in Neary v St Albans' Girls High School. It is authority for the following propositions:-

• in deciding whether to review a strike-out, an employment judge should consider the factors listed in CPR 3.9 ('Relief from Sanctions')
• but if the judge fails to mention all nine factors in CPR 3.9 in his judgment, the decision will not be appealable unless the omission is relevant to the facts of the case. A mere failure to mention the factors is not correctable on appeal (para. 34)

Age Discrimination

In Seldon v Clarkson Wright & James, a firm of solicitors had a provision in their Partnership Agreement which required partners to resign at 65 (although they could be kept on by agreement). The claimant alleged that this was age discrimination.

The Employment Tribunal found that although the provision constituted direct age discrimination, it was justified. In part this was found on an assumption that performance tails off at around this age. The claimant appealed on various grounds, and the Equality & Human Rights Commission was permitted to make representations as interveners.

The EAT dismissed all the grounds save one, namely that the assumption that performance dropped off at 65 was not supported by any evidence and involved stereotyping. In principle, such a rule could be justified, but it was not justified in this case. The case was remitted to the same Tribunal to consider whether the need to achieve the other legitimate aims was sufficient to justify the rule.

In his judgment, Elias P. made the following observations:-

• the test with respect to direct age discrimination is not fundamentally different to that which applies to the other forms of discrimination. Nothing in domestic law nor the Directive requires a different test;
• there is no basis for Tribunals to direct themselves that it is only in very exceptional cases that direct age discrimination should be permitted - "it must apply the normal principles of legitimate aim and proportionality";
• the fact that, at the time when the rule was agreed upon the firm gave no thought to age discrimination or its justification, does not prevent it from justifying that rule now;
• the fact that the partners consented to the rule originally may be a factor to consider, but it does not automatically make it justified;
• for a partnership to seek to conduct matters so as to achieve "a congenial relationship amongst the partners" is a perfectly legitimate aim - "the equality laws are not designed to determine for companies what might be appropriate objectives"

[Thanks to Tom Croxford of Blackstone Chambers, who acted for the Respondent, for telling me about this case. Thanks also to www.emplaw.co.uk for allowing me to reproduce their summary of the EAT's key observations]

Homophobic Banter

The Court of Appeal has, today, overturned the EAT's decision in English v Thomas Sanderson Ltd. (see bulletin 20/2/08 for EAT decision).

By a majority, the Court of Appeal held that the Sexual Orientation Regulations 2003 DO protect a heterosexual man who is repeatedly tormented by homophobic banter (including names such as “faggot”) when (a) he is not gay, (b) he is not perceived or assumed to be gay by his tormentors, and (c) he accepts that they do not believe him to be gay. The banter arose purely because he had attended a boarding school and lived in Brighton.

The judgment of Laws LJ, who dissented, is twice as long as the combined judgments of Sedley LJ and Lawrence Collins LJ, who allowed the appeal. The judgments make very interesting reading.

[Thanks to Marcus Pilgerstorfer for telling me about this case. He has written an excellent summary of it, which appears on the Old Square Chambers website]

Time limits in the EAT

We all know the strict Abdelghafar rule against extending the 42-day time limit for appealing to the EAT. But what about the 28-day time limit that an Appellant has to apply for a r3(10) hearing if his/her appeal is rejected under r3(7)? Is it the strict Abdelghafar approach? Or the more relaxed approach the the EAT takes for, for example, lodging bundles of authorities or skeleton arguments?

This has now been decided by Underhill J. in Echendu v Morison Supermarkets. He holds that the strict Abdelghafar approach applies, so the 28-day time limit cannot be extended unless exceptional reasons apply (para 20).

He also holds that the 28-day period starts running from the date the r3(7) Notice is sent out, not the day it is received by the parties. Since the rule 3(7) Notice is not normally sealed by the EAT, the sensible rule of thumb is to assume that the letter is sent out on the date on the Notice itself, although that could be rebutted by other evidence (eg the postmark on the envelope) - paras. 13-15.

[Thanks to Dale Martin of Littleton Chambers, who successfully acted for the Respondent, for telling me about this case]

Restricted Reporting Orders

The EAT has, in Tradition Securities & Futures SA v Fariad, held that a restricted reporting order (‘RRO’) prohibiting the naming of the Claimants in relation to allegations of sexual misconduct can be varied in order to permit naming of those Claimants, notwithstanding that the previous RRO had been varied so as to permit reporting of the Claimant’s other discrimination claims against the alleged perpetrators.

In reaching this conclusion, Underhill J stated:

• an application to vary a RRO is governed by the principles in Hart v English Heritage (2006), namely a Tribunal should only vary a case management order where there is a material change of circumstance or some other exceptional reasoning justifying reconsideration.
• the Claimants’ change of position that they no longer wished to have the protection of the RRO was sufficient reason to justify reconsideration by the Tribunal.
• in principle, if the naming of the Claimants was likely to lead to identification of the alleged perpetrators by members of the public, it was open to the Tribunal to draft the RRO so as to prohibit such identification.
• on the facts of the case, it was not established that the identification of the Claimants was likely to identify the alleged perpetrators. Crucially, no identifying detail had been published in relation to the other discrimination claims and would almost certainly not be published in the future because the press would be aware that such publication would in practice lead to the alleged perpetrators’ identification in relation to the sexual misconduct allegations.

[Thanks to Sian Reeves, pupil barrister at 1 Temple Gardens, for providing this summary]

Annual Increase in Compensation Limits

The annual increase in compensation limits has just been published (for dismissals and other trigger events occurring after 1st February 2009). The key increases are:

• compensatory award: £63,000 to £66,200
• a 'week's pay': £330 to £350
• maximum redundancy payment: £9,900 to £10,500

Full details here.