‘Correctable’ Disability

The definition of disability in the Equality Act 2010 has been covered a number of times in this blog, and comprises of four core requirements:

  • That the individual has a impairment; and
  • That this impairment affect their normal day to day activities; and
  • That this effect is substantial (which means more than trivial); and
  • That this has or is likely to be a long-term condition.

Sometimes a condition will be a disability even if all these requirements are not met, cancer is one example. However, conversely, some conditions even if they were to meet all four of the above requirements. These are set out in  The Equality Act 2010 (Disability) Regulations 2010 and the conditions range from Hay Fever to a tendency to set fires. However, in Schedule 1 paragraph 5 Parliament effectively added another condition to the prohibited list. 

The general position is that where a disability is treated and the treatment ‘cures’ the effect of the impairment then that is still considered a disability. So, for example, if a person had a mobility problem relating to their foot but, specialist footwear completely solved the problem then that would not stop the impairment being a disability under the Equality Act 2010, since the test is how the individual would be affected without the benefit of the treatment.

However, Paragraph 5(3) of Schedule 1 of the Equality Act introduces one exception:

Sub-paragraph (1) [that is the paragraph saying the effect of treatment or other measures should not be considered] does not apply—

(a) in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;

So, if a person’s sight is ‘corrected’ by spectacles or contact lenses then they cannot be disabled even if the four criteria set out at the beginning of this post are met.

In Mart v Assessment Services Inc [2019] the EAT considered the scope of this case. Given the preceding summary the outcome of the case will not be a surprise but the case also provides a good reminder of the importance of careful identification of relevant issues.

Mrs Mart had diplopia, commonly referred to as double vision. She also experienced other long term conditions that may or may not have been linked to the diplopia. The facts around the originating employment tribunal is unclear as the EAT do not provide much detail and I have been unable to locate the original tribunal’s decision. However, the original claim was a claim of indirect discrimination and the disability claimed was diplopia.

In treatment of the double vision the claimant was prescribed contact lenses that did indeed correct her double vision. However, according to the claimant they had a side affect of harming her peripheral vision and causing a facial disfigurement. When making the claim however the claim expressly excluded a claim relating to depression and facial disfigurement (which can be a disability under the 2010 Act).

On the fact the EAT made two conclusions – first because the issue related to side effects of the treatment insofar as they were consequential to the treatment but were separate impairments could not be included. While the claimant could have argued that there were separate disabilities operative in the case she expressly chose not to and should have sought an amendment to the claim to include them.

Second,  because the double vision was indeed corrected by the contact lenses and since this was the impairment alleged to constitute a disability then applying paragraph 5(3)(a) the claimant’s sight problems were corrected by the treatment and so could not be a disability (this paragraph, it will be remembered, only applies to visual impairments that can be corrected by spectacles or contact lenses not to other disabilities).

The decision then is not in any way surprising but I think it is a useful by way of a reminder of the importance of ensuring all alleged disabilities are cited, not just in employment tribunal claims but also to employers. It is not not inconceivable that a more carefully pleaded case could well have had a different result. In this regard, the earlier decision of the EAT in Ginn v Tesco Stores Ltd UKEAT/0197/05 is helpful in its decision that for disability purposes the conditions that may not in themselves be disabilities can, when viewed together, amount to a disability.

 

 

 

Court of Appeal Restricts Effectiveness of Trade Union Negotiation

In 2002 the European Court of Human Rights decided the case of Wilson v UK and found that UK trade union legislation was contrary the Article 11 of the  European Convention on Human Rights – in particular, at paragraph 48 of Wilson the ECHR found that

by permitting employers to use financial incentives to induce employees to surrender important union rights, the respondent State has failed in its positive obligation to secure the enjoyment of the rights under Article 11 of the Convention. This failure amounted to a violation of Article 11, as regards both the applicant trade unions and the individual applicants.

The UK governments response to the judgement was to introduce new legislation in 2004 which is set out in sections 145A to 145F of the Trade Union and Labour Relations (Consolidated) Act 1992. 

Restrictions on Inducements to Union Members

Section 145B of the Act is the specific section that addresses the prohibition of inducements by an employer to its workers to have terms and conditions directly negotiated with the employer and worker independently of the trade union.

Section 145B introduces a right to individual trade union members of a trade union who is recognised by the employer for collective bargaining purposes (or by a union seeking to be recognised) not to be have a contractual offer be made directly to the worker would when accepted have what is called the ‘prohibited result’ and this result was the employer’s main or sole purpose when making the offer.

The section does however provide some limited circumstances, in section 145D.

The Basic Facts in Kostal

There has been very little caselaw on section 145B. As a union representative there has only been one time I have had occasion to consider it as a possible course of action. It’s prominence however rose with the decision of the EAT in 2017.

The basic facts in Kostal was that Unite was recognised by the employer for collective bargaining purposes and was negotiating with the employer about the pay award. The union and the employer did not reach an agreement but the offer went to a membership ballot and 80% of union members rejected the offer.

Disappointed with the outcome of the union ballot the employer decided that it would make precisely the same offer to each employee directly and that those who accepted, and those only, would receive not only the pay award but a Christmas bonus, those who refused would not.

In the new year the employer also wrote directly to every worker who refused the direct contract change offer and advised that that the employer was considering dismissing those workers who did not agree. The employer in making that offer made no reference to this being a dismissal and re-engagement on new terms dismissal.

The EAT and ET both found the purpose of the employer’s actions was to undermine collective bargaining. The Employment Tribunal itself commented that

it is not permissible for an employer to abandon collective negotiation when it does not like the result of a ballot, approach the employees individually with whom it strikes deals and then seek to show its commitment to collective bargaining by securing a collective agreement which is little more than window dressing – having destroyed the union’s mandate on the point in question in the meantime. In other words, if there is a Recognition Agreement which includes collective bargaining, the employer cannot drop in and out of the collective process as and when that suits its purpose.

Unfortunately, the effect of the Court of Appeal’s judgement in Kostal, independent of the issues in section 145D is that employer’s has been licence to do just that.

In the Court of Appeal the court (45) noted and appear to have accepted that the decision to make individual offers meant that it was “exceptionally improbable that the company did not intend to circumvent the collective bargaining process when it made the offers: in effect (eliminating the double negative) they found, and were entitled to find, that Kostal’s purpose was to circumvent the collective bargaining process.” And yet, even though none of the caveats to this right in section 145D applied, that this was in large part the issue in Wilson, accepted this description but still left open the question of whether the prohibited result was engaged. 

The prohibited reason is set out in 145B(2) and states that prohibited result is “that the workers’ terms of employment, or any of those terms, will not (or will no longer) be determined by collective agreement negotiated by or on behalf of the union.”

One would think that the fact that by reason of the employer’s decision to avoid negotiating any change of contract on the yearly pay settlement with the union, even if they were willing to do so in the future if the union were more ‘compliant’ the “will not” provision would have been met. But the Court of Appeal had other ideas.

Court of Appeal

In it decision last week the Court of Appeal substantially restricted the circumstances in which a union member will be able to allege unlawful inducements to forego collective bargaining when an employer does not like the negotiating position a recognised trade union adopts to two situations in situations where it is not alleged that the employer is not motivated by express anti-union motives.

First, where a union seeks recognition but the employer makes an offer that would mean that their terms and conditions would not be subject to a collective bargaining unit.

Second, where the employer in making the offer intends to to permanently remove the term or condition from collective bargaining.

If inducement is not for one of these situations then the decision is not a prohibited reason, this would even apply where the employer is motivated by a desire to weaken the union’s bargaining position, as on the summary appears to be the motive of the employer in this case.

The rationale of the decision was that although the literal reading of the statute advanced by Unite was possible this cannot have been Parliament’s intention because that would give a veto over any changes and Parliament cannot have intended that. I am unpersuaded that is really the case on the issue of veto, why not? It is surely proper that in bilateral negotiations upon which agreement is necessary   that each party have a veto. And, besides which, as the initial tribunal noted it is not as though the employer is wholly without options, if the terms is truly necessary, it is open on an employer to serve notice on a dismissal and re-engagement basis which so long as the reason is a reasonable one (within the band of reasonable responses) it is unlikely attract compensatory liability to the employer.

Kostal is a dangerous and anti-union decision. It is not hard to see this will be abused and it is not as though there is a swell of tribunal claims on unlawful inducement grounds that the decision is quelling. Instead the Court of Appeal has given licence to employers to intermittent disavowal of collective bargaining to push through changes that are beneficial to the employers and against the interests of workers. This is acceptable so long as this disavowal and avoidance is ‘temporary.

And the Court’s refrain that this is all OK because the workers can always strike (leaving aside that new strike laws make that more and more a hypothetical right only) it is a strange argument that effectively encourages unions to undertake industrial action and increase industrial unrest.

It is certainly welcome that Unite have already announced that they have sought permission to appeal the decision to the Supreme Court. It may be that the case is also ripe for a further challenge, if necessary, to the ECHR on Article 11 grounds.

 

 

Veganism and discrimination

Last year the BBC ran a story on what it described as a ‘landmark’ case on whether veganism, or more specifically, ethical veganism was a religion or belief for the purposes of the Equality Act 2010.

The factual background to the case is that the Mr Casamitjana was dismissed by his employer, the League Against Cruel Sports, for what the employer deemed to be gross misconduct. Mr Casamitjana however has (I assume) alleged that the dismissal was discriminatory, the exact label upon which the discrimination is alleged to occur is unclear but I would imagine it is a complaint of direct discrimination given the employer’s statement to the press that “Mr Casamitjana is seeking to use his veganism as the reason for his dismissal.”

Landmark?

Whilst the BBC (and Mr Casamitjana for that matter) seem to promote the case as landmark I really do not see it as such.  The protected characteristic of religion of belief in the Equality Act is broad and includes philosophical beliefs of which ethical veganism is potentially surely one whether there has been a case considering this or not.  The test for whether a philosophical belief is covered by the protected characteristic of religion or belief is set out in the EAT’s decision in Grainger PLC v Nicholson [2009]. Grainger, which itself concerned the alleged protected belief of climate change and the environment, sets out that five questions need to be answered affirmatively, and if they are then the belief is protected:

(i) The belief must be genuinely held.
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

What is noteworthy is that it appears likely that the EAT’s decision takes the scope of religion and belief discrimination much further than the then New Labour government that introduced it intended – for example, in 2010 after the EHRC issued guidance that veganism was probably a protected belief the Government Equality Office objected to this expansion saying

the government did not share the view that climate change or veganism were religious beliefs; however, the interpretation was a matter for courts. The spokesman said: “The Equality Bill does not change the existing definition of religion or belief and the Government does not think that views or opinions based on scientific – or indeed on political – theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered (source).

Be that as it may the broader approach has indeed been accepted by the courts and it is not hard to see that ethical veganism is quite capable of meeting these five Grainger tests. Indeed, the EHRC in its Religion and belief guidance is explicit that “Beliefs such as humanism, pacifism, vegetarianism and the belief in man-made climate change are all protected.” There is no sensible reason why vegetarianism should be a protected belief and veganism is not.

Again, quoting from the BBC’s piece, Peter Daly the solicitor for Mr Casamitjana explains that if his client is “successful, we will achieve a judgment which formally recognises the protected status of ethical veganism and which could then be used as the basis to combat discrimination against vegans in employment, in the provision of goods and services, and in education. This is therefore a landmark case.”

Frankly, whether a tribunal has ever formally recognised ethical veganism as a protected belief or not it is little more than PR to describe this as ‘landmark’ the fact that according to Mr Casamitjana’s own crowdfunding appeal this apparently ‘contentious’ issue has now been conceded by the employer.

What seems more likely is that the real battle will be not on whether the treatment was because of the protected belief itself or because of conduct that arguably grew out of that belief similar to the recent Court of Appeal judgement in Kuteh upholding the fairness of the dismissal of a Christian nurse for inappropriate proselytism during work hours.

Protected Belief

To continue with the vegan theme I note that the Daily Mirror is reporting today on demands to outlaw vegan discrimination, with Alex Monaco a solicitor being quoted as saying:

If you were Jewish or Muslim and told to get a round of bacon sandwiches in, no one would bat an eyelid if you refused. But if you’re vegan and refused to buy a pint of milk to make tea because you believe the dairy industry is torturing cows, then you would be laughed out of the kitchen. Employers should have a duty to ensure vegans are protected at work and are offered options. The ultimate aim is to get the law changed so that the Equality Act includes vegans.”

I have to confess it does strike me as a strange demand since, as should be clear, there is no reason that claims of discrimination at work on the basis of veganism cannot already, on the current law, be pursued meaning there is no need to “get the law changed” at all. The mission is already accomplished!

The Effective Date of Termination (Dismissal)

In order to make a valid unfair dismissal complaint an employee needs to begin the employment tribunal claims process (nearly always by starting the ACAS Early Conciliation process) within three months of their effective date of termination (EDT). Therefore, establishing what the EDT is among the primary duties of any union rep when advising whether a member has a good unfair dismissal claim.

With the harsh approach to time limits the employment tribunals apply with their “reasonably practicable” test the sad fact is that many many substantively good employment tribunals have been dismissed because of a miscalculation of an EDT.

The general rule is that an employee EDT is the date the dismissal is communicated to the employee. As I have discussed previously the Supreme Court in Gisda Cyf (2010) clarified that the EDT is effective only at the time when the notice of termination is either received and read by the employee or would reasonably have been read. This means that calculating the EDT can be more difficult (but helpful to employees) because the EDT is judged by more than just, for example, what date a letter was sent.

As a rule of thumb however it is always best in cases where a dismissal has been first communicated by post to err on the side of caution and calculate the EDT from the date of the letter, that way any claim will always be in time.

In the remainder of this post I want to offer some brief technical situations in addition to the issue of when a letter was read where the EDT may differ from a date calculated from a date a letter was sent.

First, and most commonly, if an employee is informed in a face to face meeting that they have been dismissed and that is followed up by a letter confirming this then the date that needs to be used is the date the employee was informed.

Second, if a union representative of the employee (or a solicitor acting for an employee) is informed of the dismissal before the employee and then informed the employee then it is this date, and not the date the employee is informed of the dismissal directly by the employer that should be used as the starting point for calculations. This principle was set down in the Employment Appeal Tribunal’s decision in Robinson v Bowskill & Ors [2013] UKEAT 0313_12_2011. In that case an employee was dismissed in her absence on 6 July and an email to the claimant’s solicitor was sent informing them of this that same day. The next day (7 July) the solicitor told the employee what the email said and the following day (8 July) the employee received a dismissal letter from her former employer. The case turned on whether the EDT was 6 July (the date the solicitor was informed), 7 July the date the solicitor informed the employee, or 8 July (the date the employer directly informed the employee). Applying the Gisda Cyf case referred to above the EAT decided the employee still needed to directly know of the dismissal but it did not matter that it was the solicitor whom had told her.

Third, where a letter is is a dismissal letter giving a period of notice then unless there is a clear contractual provision to the contrary then the notice period should begin on the day after the letter was sent, not the day of the letter. This was set out in the EAT decision in Wang v University Of Keele [2010] UKEAT 0223_10_0804. For example, if an employee receives and reads a letter dated 8 June 2019 giving him one moths notice then adding that one month would appear to give an EDT date of 8 July 2019.  However, applying the principle in Wang that the notice period starts the following day, namely 9 June 2019, means the actual date of dismissal would be one day later on 9 July 2019.

Finally, an employee is often dismissed and told not to attend work during the notice period. Here the question of when the EDT is will be very case specific. If the employee is dismissed immediately and is given a sum to pay for the sums she would have received during her notice period then the date should be calculated from the date of the dismissal decision. However, if the employee is simply asked to stay at home for the notice period then this is likely to still be pre-dismissal work and so the EDT will be the date that ends.

The most important advice on EDT remains as it was stated at the beginning of this post however. If the EDT is unclear it is best to assume the date is the earliest one possible.