In this months employment law update we bring you a range of cases, all of which involve attempts to test boundaries, either in the context of the employment relationship or with regards to the interpretation of employment legislation.
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Firstly, we have Ms Mart, who sought to rely on a visual impairment that was corrected by a contact lens as a disability.
A disability is a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to do day to day things. The Equality Act 2010 specifically excludes from the definition any visual impairment which is correctable by contact lenses or glasses. Sometimes, the correction of visual impairments can create side effects. The Employment Appeal Tribunal has recently looked at whether side effects can stop the impairment being correctable.
In Mart v Assessment Services, the employee brought a claim for disability discrimination based on her diplopia (double vision). She also had a facial disfigurement, which caused depression and anxiety, but she chose to limit her claim to the double vision. She was prescribed a contact lens which corrected the problem. However, the lens visibly blacked out her eye, which the employee said was a disfiguring side effect (disfigurement can also be a disability if it is ‘severe’). The lens also restricted her peripheral vision. For these reasons, the employee said the lens had not corrected her vision and she was therefore disabled.
The employment tribunal said that she was not disabled because the lens corrected the relevant impairment – her double vision. The anxiety and disfigurement issues were not relevant because she had specifically chosen not to rely on them. The EAT agreed. There might be cases where lenses corrected the problem but created another. A condition might not be ‘correctable’ in someone who cannot tolerate the lens, for example due to dry eyes or susceptibility to infection. In this case, although the lens affected the employee’s peripheral vision, it was not so significant that it stopped the lens being a practical solution to her double vision problem. There was also no evidence to suggest that her anxiety and depression was connected to the lens and stopped her from wearing it (and she hadn’t argued that in her case anyway).
The situation may have been different if the employee had relied on facial disfigurement as her impairment, with the lens forming part of that argument. Anxiety and depression can also be impairments. Any such conditions would have to meet the legal test for disability though and be specifically relied on in tribunal proceedings.
In Hextall v Chief Constable of Leicestershire Police, the Claimant tried and failed to extend the definition of sex discrimination to establish a right to enhanced shared parental pay. Despite convincing the Employment Appeal Tribunal that there was potential for an indirect discrimination claim when employers enhance maternity pay but not shared parental pay, Mr Hextall was unable to persuade the Court of Appeal. His claim failed on the grounds that women that have given birth are in a unique position and afforded special protection meaning he could not therefore compare himself to a woman on maternity leave.
Suzanne Pipe, one of our lawyers here at Vista has recorded this overview of the case.
Whereas in Otshudi v Base Childrenswear, the employer tried and failed to argue that the Employment Tribunal had pushed things too far when they awarded a Claimant £16,000 of compensation for injury to feelings arising from a one-off act of discrimination. The EAT concluded that the decision was not ‘manifestly excessive’ and the appeal was not therefore upheld. A reminder of the potential for significant awards in relation to discrimination claims as well as the need to ensure managers are adequately trained on such issues.
The next case deals with the challenge of balancing competing rights and freedoms. At the centre of the case was a nurse who regularly started conversation with patients about her Christian beliefs. She was warned not to do so but did not heed the warning, with one patient complaining that they had been asked to pray and sing a pslam ‘like a monty python skit’. When the employee was dismissed, she claimed that this was discrimination on the grounds of religion but the Court of Appeal concluded that she was stretching the scope of the protection too far. The employee had failed to follow a reasonable management request and that was the cause of her dismissal.
In the case of Baldeh v Churches Housing Association, Ms Baldeh was dismissed over concerns about her performance and behaviour. At her appeal hearing she said that her behaviour was caused by depression. When she was dismissed, she brought a claim of discrimination arising from disability. The EAT extended the parameters of the dismissal decision, stating that the outcome of an appeal hearing is an integral part of the dismissal – and therefore the employer was aware of her disability at the time of dismissal. This is an important reminder to employers that whenever disability information emerges, it should be dealt with carefully and thoroughly.
CCOO v Deutsche Bank, is a case that focuses clearly on limits; those imposed by the Working Time Directive (‘WTD’). The Court of Justice of the European Union have handed down their decision which is aligned with the Attorney General’s opinion and provides that member states must require employers to accurately measure working time to ensure compliance with the WTD. This goes beyond the Working Time Regulations and calls into question the current practices in the UK. Further guidance is therefore needed to understand the implications – we will of course keep you informed.
Finally, we are still awaiting the Employment Tribunal’s view on whether ethical veganism is protected under the Equality Act as a philosophical belief but a recent survey has found that 31% of vegan employees have felt discriminated against in the workplace. Irrespective of the outcome of the pending case, employers wanting to ensure a harmonious and productive workplace would be wise to ensure that employees are clear about their dignity at work policy and the consequences of any breaches.