Tuesday 28 April 2009
Back in from the Novacold............
Just a short note to say goodbye and good riddance to Malcolm (follow the link to my seminar notes for more detail on the House of Lords decision in Malcolm):
I have just had a brief scan of the new Equality Bill. It tidies up a few things and brings some much needed consistency across the various types of actionable discrimination. For all the detail go here:
I think I might have a look at some of these proposals next month; for the moment I thought I would briefly outline a few of the more important disability related changes:
- The Bill proposes that the comparator ‘for reason relating to discrimination’ revert back to the Clark v Novacold comparator.
- The Bill removes the list of capacities from the definition of disability although it is likely that they will still prove useful in guiding tribunals.
- The threshold that gives rise to the duty to make reasonable adjustments for disabled people in other areas has now been brought in line with the ‘substantial disadvantage’ test laid down in the employment provisions.
All in all a pretty good outcome for the disabled rights campaigners and more importantly those with disabilities both in and out of employment. My one concern is when, or perhaps if, this Bill is going to make it onto the statute book.
Peter D
PS I am really sorry about the strap line at the top - much as I have tried to summon up the will to get rid of it it makes me smile.........
Thursday 23 April 2009
Not bl**dy likely!
Is it my imagination or are there more reasonable adjustment cases coming through on appeal at the moment? One case recently caught my eye.
The case (follow link below) looked at the application of the exemption found in S 4A(3)(b) of the DDA. This case involved a job applicant who had flagged up her disability but not made any mention of adjustments that she might require at interview. The employer ran lack of knowledge as a defence.
The EAT explained that the words in the statute had to be read together. The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:-
(a) does not know that the disabled person has a disability;
(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
(c) could not reasonably be expected to know that the disabled person had a disability; and
(d) 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.
May be not an unsurprising conclusion due to the use of 'and' throughout the section. However for me this was not the most interesting part of the decision. Tucked away in the judgment was another look at the meaning of ‘likely’ (see previous post). The EAT felt that because the words 'might' and 'may' were used elsewhere in the statute that the draftsman must have meant the meaning to be different. The EAT concluded that ‘likely’ in this context did mean something different but did not say what the meaning was.
Sorry to bang on about it but someone is going to come badly unstuck in a higher court in the near future over the meaning of likely in the context of the DDA!
http://www.employmentappeals.gov.uk/Public/Upload/08_0454rjfhLBRN.doc
Peter D
The case (follow link below) looked at the application of the exemption found in S 4A(3)(b) of the DDA. This case involved a job applicant who had flagged up her disability but not made any mention of adjustments that she might require at interview. The employer ran lack of knowledge as a defence.
The EAT explained that the words in the statute had to be read together. The Employment Tribunal erred as it ought to have considered (but did not consider properly) the requirements of section 4A(3)(b) of the Act which means that an employer is exempt from the duty to make adjustments if each of four matters can be satisfied and they are that the employer:-
(a) does not know that the disabled person has a disability;
(b) does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled;
(c) could not reasonably be expected to know that the disabled person had a disability; and
(d) 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.
May be not an unsurprising conclusion due to the use of 'and' throughout the section. However for me this was not the most interesting part of the decision. Tucked away in the judgment was another look at the meaning of ‘likely’ (see previous post). The EAT felt that because the words 'might' and 'may' were used elsewhere in the statute that the draftsman must have meant the meaning to be different. The EAT concluded that ‘likely’ in this context did mean something different but did not say what the meaning was.
Sorry to bang on about it but someone is going to come badly unstuck in a higher court in the near future over the meaning of likely in the context of the DDA!
http://www.employmentappeals.gov.uk/Public/Upload/08_0454rjfhLBRN.doc
Peter D
Wednesday 1 April 2009
Experience related pay has been the focus of complaints from female employees for sometime now. The difficulty is that as more women than men tend to take career breaks or start careers later, when they return to or in fact enter the labour market they find that they have fallen behind men in seniority and pay. A lot of women never catch up and find themselves always a few steps behind their male peers.
This was the position that Bernadette Cadman found herself. She took her case all the way to the ECJ. In Cadman v Health & Safety Executive [2006] IRLR 969 the ECJ made it pretty clear that establishing that a seniority based system of reward is discriminatory will always be a hard nut to crack for a Claimant. This is based on the ECJ decision in Danfoss [1989] IRLR 532 which held that as experience usually improves performance time served can be used to justify pay differentials.
Cadman made it clear that for an employee to succeed the employee must show that the employer has stepped beyond the margins that are afforded employers when applying such a criteria.
Now the UK courts have had their first look at Cadman in Wilson v Health and Safety Executive EAT/0050/08. Mrs Wilson was again challenging pay based on length of service. The EAT held that such a challenge is possible where an employee has raised serious doubts over the appropriateness of the criteria.
The test is set out in paragraph 44 of the Judgment:
“We think that the tribunal would have to be satisfied that in the light of the evidence adduced by the claimant there is real reason to suspect that the employer has stepped beyond the margins which can properly be afforded to employers when considering whether added experience typically improves job performance.”
The door is now a little further open but without wanting to stretch a metaphor too far it will be difficult for most women to squeeze through the gap.
Peter D
This was the position that Bernadette Cadman found herself. She took her case all the way to the ECJ. In Cadman v Health & Safety Executive [2006] IRLR 969 the ECJ made it pretty clear that establishing that a seniority based system of reward is discriminatory will always be a hard nut to crack for a Claimant. This is based on the ECJ decision in Danfoss [1989] IRLR 532 which held that as experience usually improves performance time served can be used to justify pay differentials.
Cadman made it clear that for an employee to succeed the employee must show that the employer has stepped beyond the margins that are afforded employers when applying such a criteria.
Now the UK courts have had their first look at Cadman in Wilson v Health and Safety Executive EAT/0050/08. Mrs Wilson was again challenging pay based on length of service. The EAT held that such a challenge is possible where an employee has raised serious doubts over the appropriateness of the criteria.
The test is set out in paragraph 44 of the Judgment:
“We think that the tribunal would have to be satisfied that in the light of the evidence adduced by the claimant there is real reason to suspect that the employer has stepped beyond the margins which can properly be afforded to employers when considering whether added experience typically improves job performance.”
The door is now a little further open but without wanting to stretch a metaphor too far it will be difficult for most women to squeeze through the gap.
Peter D
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