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):

http://www.12cp.co.uk/furniture/cms/documents/Disability%20Discrimination%20Update.pdf

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:

http://www.equalities.gov.uk/equality_bill.aspx

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.........

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

That will probably never happen...............

Every so often you come across a statement of the law and you think that might work in Lincoln’s Inn but not on a wet Thursday afternoon in Croydon!

As I was reading my IRLRs this month I came across the case of SCA Packaging Limited v Boyle [2008] NICA 48 (link below). This case dealt with the question of whether a disability was likely to have a substantial effect. On the question of what did ‘likely’ mean in this context the Court of Appeal came up with this gem:

“The meaning of likelihood under the DDA

[18] What is meant by the words "likely to have a substantial adverse effect" is not entirely clear. The word "likely" may mean probable but the dictionary definition includes "such as might well happen". The meaning to be given to the word when it is used in a statute will depend upon the statutory context. Thus, for example, in Three Rivers District Council v Bank of England (No 4) [2002] 4 All ER 881 in the context of an application under CPR 31.17.(3)(c) relating to disclosure of documents against a non-party on the grounds that the documents were likely to support the case of the applicant or adversely affect the case of one of the other parties, the Court of Appeal held that the word "likely" under the relevant rules meant "may well" rather than "more probable than not". Having regard to the intention of the Civil Procedure Rules a high test requiring proof on a balance of probabilities would be both undesirable and unnecessary. The word 'likely' connoted a rather higher threshold than 'more than fanciful' but a prospect could be more than merely fanciful without reaching the threshold of more probable than not. In Transport Ministry v Simmons [1973] 1 NZLR 359 at 363 McMullin J said:"An event which is likely may be an event which is probable but it may also be an event which while not probable could well happen. But it must be more than a mere possibility.

[19] The prediction of medical outcomes is something which is frequently difficult. There are many quiescent conditions which are subject to medical treatment or drug regimes and which can give rise to serious consequences if the treatment or the drugs are stopped. These serious consequences may not inevitably happen and in any given case it may be impossible to say whether it is more probable than not that this will occur. This being so, it seems highly likely that in the context of paragraph 6(1) in the disability legislation the word "likely" is used in the sense of "could well happen".”

The observations of Michael Rubenstein in the IRLRs as to the origins of this particular meaning of likely were helpful. Nevertheless it left me feeling uncertain as to what this means for the Claimant or the Respondent in the Employment Tribunal. It is relatively easy for a Tribunal to grasp the happening of an event being more likely than not. This is a familiar concept to a Tribunal but what level of proof is required to demonstrate that something ‘could well happen’? In percentage terms is it 30 or 40 or perhaps 45.5?

The matter is made more uncertain as the guidance on the meaning of ‘likely’ in the 2006 DDA Guidance clearly sets out that ‘likely’, in the context of long term, means more probable than not (see DDA Guidance C2).

So the Court of Appeal decision not only conflicts with the Guidance but also sets an uncertain test, which brings me back to the rainy Thursday afternoon in Croydon. You are for the Claimant and you are trying to explain to a Tribunal that although they thought they knew what ‘likely’ means in fact it means something different in the context of this particular matter because………………

Good luck!

Peter D

http://www.bailii.org/nie/cases/NICA/2008/48.html

My First Blog

It seems to me that even barristers need to bring themselves into the 21st century and today is the day that I make the leap. These are my ramblings on recent employment law issues that I think are important to ordinary people not just lawyers.


One step forwards two steps back.................


I lately found myself questioning where we are going when it comes to disability discrimination. It is now clear that Archibald v Fife Council was probably the high point for the disabled Claimant and since then the law has been in retreat. Two cases this year London Borough of Lewisham v Malcolm & Others and Richmond Adult Community College v McDougall have made it much more difficult for the disabled Claimant to win.


What does this mean for disabled employees and job applicants? I think we will see a reduction in disability claims based on stress/depression and a very substantial fall off in reason relating to disability claims.


Is this a bad thing? In the long run I hope not because the law will be changed and perhaps improved upon to give more comprehensive rights to the disabled. In the meantime there will be many people missing out who previously would have succeed in their claims under the Disability Discrimination Act 1995.