Category Archives: Reasonable Adjustments

Pre-Cancer

Just over a year ago the Employment Appeal Tribunal issued its decision in Lofty v Hamis t/a First Café  and in its wake there was a lot of online discussions about whether precancerous conditions come within the deemed disability provisions of the Equality Act 2010.

Normally, in order to be a disability for the purposes of the Act a worker must show that the physical or mental impairment substantially affects their normal day to day activities and that it has or is likely to last for 12 months or more. However, the Act recognises three conditions, Cancer, HIV and Multiple Sclerosis, that are automatically a disability regardless of whether at that time the other elements of the disability definition are met.

From a worker representative’s point of view this this will mean that so long as the diagnosis can be demonstrated then the employer will have no basis for disputing disability and so the task of moving to the question of whether discrimination occurred or reasonable adjustments are required is less problematic.

The case of Lofty concerned  whether a precancerous condition came amounted to a cancer. In 2014 the claimant became aware of a skin blemish on her cheek. This was diagnosed as lentigo maligna. The advice of her medical practitioners variously descried this as precancerous lesion or a non malignant in situ cancer. In other words, the examination identified that there were cancer cells resent but this was not at the time at risk of spreading although they may  develop into a lesion malignant melanoma (a skin cancer). The Employment Tribunal that heard the case determined that since her condition is precancerous it was not yet cancer and so not a deemed disability.

It was this decision that was challenged in the EAT. In overturning the employment tribunal’s decision the EAT note that paragraph 6 of schedule one of the Equality Act (which lists cancer as a deemed disability) does not distinguish between invasive and noninvasive cancer. The fact that the claimant had cancer cells present was sufficient to mean this was cancer, regardless of whether oncologists referred to these as precancerous because they were not invasive.

However, a reading of the judgement makes the suggestions of many law firms headlines that precancerous conditions are deemed disabilities is false, there are many precancerous conditions and it is not clear all will satisfy the standard set out in Lofty. Nonetheless, I think it can confidently be stated that if there are cancer cells present then that person will be disabled under the Equality Act.

What does this mean for workers and representatives?

There are I think a couple of points worth commenting on.

First, where there are cancer cells present then the person will (at the relevant time) be disabled and so any sickness or performance issues associated with this such as sickness leave flowing from surgery are likely to require reasonable adjustments (for example, treating post operative convalescence as disability leave).

Second, while not every precancerous condition is cancer this is a difficult area relying on specialist reports of biopsies and similar reports and it is probably helpful to argue the point, as many employers will reasonably take a cautious approach and consider disability likely.

 

Long Hours Culture

shallow focus of clear hourglassI recently spoke to an old friend about how things were at work, she explained they were not good. A new manager had taken up post and would periodically require her to work long hours at short notice (literally needing to work through the night to make a deadline). She did so but when she explained that she could not do so again, at least not with adequate notice she found she was subjected to poor performance measures and strong intimations that she would be best ‘advised’ to seek alternative employment in the near future.

When an employer applies a provision, criterion or practice (PCP) which places an employee at a substantial disadvantage compared to those without a disability the duty to make reasonable adjustments is engaged. This can include a requirement to work substantial or excessive hours. An employer must in such a circumstance consider what reasonable adjustments that are reasonable in all the circumstances.

Two recent cases explore this issue and both are beneficial to workers (if they happen to be disabled, that is).

Carreras v United First Partners Research

In Carreras a disabled worker who worked 12-15 hours a day had an accident and was absent for a few weeks. He returned bit only worked for at most 8 hours a day. After a few months he volunteered to do extra hours and before long he was regularly scheduled to do late nights two days a week and on a weekly basis he was specifically requested by the employer to do so. Mr Carreras then complained of this regular requirement which made him feel unwell, for reasons partially unrelated to this complaint following this an argument with the business owner took place and Mr Carreras resigned.

In the Employment Tribunal’s decision the claim of a failure to make adjustments was rejected because although it was accepted he was disabled and that the employer was aware of the disability the was no PCP to work long hours. The tribunal found that an expectation did not amount to an obligation, and it was only if there was an obligation to work these hours that this would constitute a PCP. On appeal the EAT, and later the Court of Appeal, rejected this finding.  In giving judgement Lord Justice Underhill (para 31) explained that:

In my view the term “requirement” does not necessarily carry a connotation of “coercion” in the sense understood by the Tribunal. On the contrary, it may, depending on the context, represent no more than a strong form of “request” … The allegation there is not that the Claimant was explicitly ordered to work in the evenings, or subjected to other explicit pressures which had the effect of depriving him of any real choice; rather it is that it was made clear by a pattern of repeated requests that he was expected to do so, and that that created a pressure on him to agree. Mr Rahman in his oral submissions accepted that such a state of affairs could in principle constitute a PCP – more particularly, a “practice” – within the meaning of section 20 (3) of the 2010 Act, but he said that that did not amount to a “requirement” and was not the case which the Respondent had to meet. For the reasons which I have given, I do not agree: the equiparation of “requirement” with “coercion” is a gloss on what was pleaded.

In short, even without a formal requirement to work longer hours the expectation and/or pressure to do so may amount to a PCP of an employer which engages – if other requirements -are met – the duty to make adjustments.

Home Office v Kuranchie

Kuranchie concerned another failure to make adjustments. Ms Kuranchie was disabled by reason of dyslexia and other impairments and the employer had knowledge of this. At the employee’s request a number of adjustments were made, such as the provision the specialist equipment at consolidating her full working week into four instead of five days.

At tribunal , despite not having requested this directly from the employer previously, the claimant put forward the argument that by reason of disability she worked at a slower pace then would have been the case but for her disability. This meant that she was required to perform the same amount of work as her non-disabled peers but that the working hours required to perform this work was greater, meaning Ms Kuranchie had to work longer hours than her peers. Whereas in Carreras it was the expectation of working longer hours that was the PCP in Kuranchie the PCP Employment Tribunal found that:

The Respondent had a provision or practice of giving the Claimant the same volume of work as her colleagues.  This placed her at a substantial disadvantage compared to her non-disabled colleagues because it took her longer to complete the work due to her disabilities.  As a result, she worked longer hours than her colleagues in order to complete the work.  The Respondent should have made the reasonable adjustment of reducing her workload in order to avoid the disadvantage.

On appeal the judgement of the Tribunal was upheld and it is right that they did although it seems to me that the case could more easily framed as a discrimination arising from disability claim.

However, what is clear from both Carreras and Kuranchie is that where for reasons arising and related to disability a employee needs to work longer hours or, alternatively, when there is a general expectation to work long hours that places a disabled person at a substantial disadvantage (for example, they are more tired) then  this can provide a legitimate basis for a disability discrimination complaint.

And the non-disabled?

I consider the above rules to be sensible but at common law there is very little protection for workers. By way of example, consider the case of the junior doctor in Johnstone v Bloomsbury Health Authority [1992] QB 333. As a matter of contract the worker, a junior Doctor, was required to work a 40 hour week and, on top of that, overtime of up to a further 48 hours (so up to 88 hours a week in total). When faced with the contrast between the express term of contract (to work up to 88 hours work) and the implied term to take reasonable care for the safety of employees the court fund it very difficult to determine that the implied term persisted in the wake of the explicit term. This was resoled by what Hugh Collins called Brown Wilkinson’s “eloquent solution” (Employment Law, 2nd Ed., Oxford, 2010) in that the 48 hours overtime was discretionary and as such that discretion was impliedly qualified by the implied duty to take reasonable care for an employee’s wellbeing.. In short, the exercise of the discretion engaged the implied duty of care. However, as Collins notes, ” if the contract imposed an absolute obligation to work a further 48 hour’s overtime, there could be no breach of the implied term.” So, the more retrograde explicit term requiring excessive hours attracts little to no protection under the common law contract principles (Deakin, Labour Law suggests such a contract could be nullified on public policy grounds or under Unfair Contract legislation).

Of course, aside from common law a worker will – for the time being at least – be able to gain some protection from working time regulations, notably the maximum number of hours work and minimum rest breaks between shifts but for how long will there  such protection given the glee with which some Brexiteer’s have talked up EU ‘cutting red tape’ after March 219.

 

Can a Taxi to work be a Reasonable Adjustment?

taxi-129094_439x324

This is a question that is only ever likely to be asked of employees of central government departments. In most circumstances a disabled employee who is unable to travel to work by their own means (for example, by driving or using public transport) may obtain assistance through the Access to Work scheme which provides fares to work assistance. It is only employees of central government departments who are, as a matter of policy, excluded from that assistance and therefore, any assistance would need to come from the employer.

Unfortunately, the legal question of whether an employee should be given assistance to travel to and from work is less helpful. In Kenny v Hampshire Constabulary, a case concerning the Disability Discrimination Act 1995, the extent of which activities related to employment are “arrangements made by or on behalf of the employer” that engage a duty to make reasonable adjustments (in 2004 the DDA was amended to make reference instead to a provision, criterion or practice applied by or on behalf of the employer”.

Kenny is a sad case in which the claimant, who had cerebral palsy exhibited notable tenacity in refusing to accept Access to Work recommendations that he was unable to work and sought employment himself. He was successful in his application but when the full nature of the adjustments required were known, such as needing assistance to go to the toilet, the employer withdrew the job offer. The question for the EAT was were the domestic needs of Mr Kenny an arrangement made by or on behalf of the employer. The EAT dispatched with this issue quickly in finding that the arrangement must be ‘job related’:

The first question that arises is whether the arrangements which were necessary to enable the applicant to work with the respondents fall within section 6. We have come to the conclusion that they do not. Broadly, we accept the submission on behalf of the respondents on the cross appeal. In the first place, we consider that Ms Moor’s submission amounts to a contention that every arrangement which could be made to facilitate the disabled person’s employment falls within the definition in section 6(2). Yet, as it seems to us, a line must be drawn somewhere otherwise the statute would have been drafted differently. Subsection (2), as the word “only” foreshadows, is not intended to cover everything an employer could do. For example, the provision of transport for getting to an fro from the employers’ premises is outwith the section. If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but not the employers’ responsibility. The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, but without involving a breach of the Act. Therefore, the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangement within the Act. In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to section 6(2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely “any term condition or other arrangement on which employment promotion a transfer or any other benefit is offered or afforded”, Parliament had in mind what might be called ‘job related’ matters. In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements.

It seems clear then that under the DDA at least a refusal to provide transport to and from work will not be a ‘job related’ arrangement and therefore not be a reasonable adjustment. Only where the employer does more generally provide transport to work, which does sometimes happen, would this be a arrangement of the employer that would possibly engage the duty to make adjustments for a more individual approach to work.

In conversation with other reps one question that reps have asked is how on this basis the allocation of a reserved car parking space can be found to be a reasonable adjustment since this is also clearly not about the job itself but traveling to and from work. The case of The Environment Agency v Donnelly is a case in point. In Donnelly the employer offered car parking to all staff in two different car parks. It is therefore an arrangement made by the employer such that where that arrangement placed a disabled person at a substantial disadvantage there was a duty to make reasonable adjustments imposed. Were an employer not to offer any car parking spaces for use by employees then there would not be a arrangement of the employer that could place disabled employees at a substantial disadvantage.

But what of the situation under the Equality Act 2010?

Section 20 of the Equality Act supersedes Section 6 of the DDA to set out the circumstances in which a duty to make adjustments arises. The main focus on when a duty to make adjustments arises in the Equality Act remains essentially the same as was the case under the DDA: the employer must impose “a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled”.

I can see no basis under the current legislative drafting why the principle in Kenny that an adjustment must be job-related and a PCP of the employer would not be applied in an Equality Act context. I have heard it said that the addition of section 20(5) of the Equality Act which relates to auxiliary aids may change the position. An Auxiliary Aid is defined in the EHRC Employment Practices Code (6.13) as being “something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker.”

Whilst I am not aware this issue has been adjudicated upon (if I’m wrong comments are very welcome) given the definition of “relevant matter” in schedule 8 of the Act I cannot see that a tribunal would be likely to take a different approach and the EHRC Code does not advance this (the language of the Code itself reflects the earlier Code alluded to in Kenny).

Does that mean there is no legal recourse to an employee? Were an employee to in principle qualify for Access to Work’s fares to work scheme but in practice not qualify because of their employment in a central government department then it does strike there is a prospect that they may have a claim that the employer’s failure to pay for their transport represents unfavourable treatment arising from disability. Because of the Government’s public commitment when removing DWP funding for Access to Work adjustments that there would be no loss in the level of support offered then it could be argued that the actual deterioration in support offered is not a proportionate means of achieving a legitimate aim.

 

Cases Cited:

Kenny v Hampshire Constabulary [1998] UKEAT 267_98_1410

The Environment Agency v Donnelly [2013] UKEAT 0194_13_1810

Disability and Disciplinary Dismissals

disabilityIn recent weeks the Employment Appeal Tribunals judgement in Thomson v Imperial College Healthcare NHS Trust has been published. The key issue which has been attracting comment is the endorsement of the first tier tribunal’s decision that a dismissal may be unfair because of the choice of the decision maker, even when there is no accusation of bias, and the choice of the decision maker was entirely consistent with the employer’s disciplinary decision.

The decision is an important one to which I may return to in in a later article; however, the case also concerned a complaint of disability discrimination.The decision on this point is not ground-breaking in legal terms but it does I think raise some helpful issues for employee representatives dealing with disciplinary proceedings where disability is alleged to be a factor.

The claimant was a Consultant Neonatologist who was dismissed for bullying colleagues. She was at the time of the misconduct subject to a formal warning for misconduct but was dismissed for gross misconduct so the prior warning had little significance for the case. The claimant was also claimed she was disabled by reason of her dyslexia which the Respondent conceded at a Case Management Discussion. During the proceedings the claimant sought to suggest she was disabled by reason of her dyslexia and depression and following an amendment to the claim the claimant made a complaint that the Respondent had failed to make a reasonable adjustment for the claim.

The claimant alleged that the Respondent operated a “a practice of normally dismissing in the case of conduct found to be gross misconduct.” This was the provision, criterion or practice required by section 20(3) of the Equality Act 2010 that was alleged to place the claimant at a substantial disadvantage. The main contour of the allegation is found in the ET’s determination of this complaint, which is cited in paragraph 14 of the EAT’s determination:

Did the (valid) PCPs put the Claimant at a substantial disadvantage in relation to a relevant matter in comparison with persons who were not disabled?  We have reminded ourselves of the wording of paragraph 48 of the amended Grounds of Appeal (quoted above).  The comparative disadvantage was said to arise from the alleged fact that the Claimant’s disability made her more likely to be found guilty of conduct amounting to or perceived as bullying.  That is to say more likely than persons who were not disabled.  Essential to the argument is the stated link between dyslexia and/or neurodiversity (the disability or disabilities pleaded) and the behaviour liable to amount, or be perceived as amounting, to bullying.  In our judgment, the insurmountable difficulty confronting Mr O’Dair is that the link is simply not made out.  Dr Harrison’s evidence in answer to Dr Mitchell’s first question was very clear (see above).  He makes no connection between dyslexia or neurodiversity and bullying behaviour or conduct which might be seen as harassment.  Nor does Dr Roberts offer any support for Mr O’Dair’s theory.  Subtle problems of perception and misreading of verbal cues are a world away from the sort of behaviour of which the Claimant was accused.  As the case progressed Mr O’Dair appeared to seek to overcome these difficulties by focusing on the evidence of Professor Harrison pointing to incipient depression.  But the obvious answer to that is that we are not dealing with a disability discrimination case based on depression.  No such complaint is before us.

 Dr Harrison’s answer referred to above was in respect to the question posed which was in “your opinion is it likely that the bullying and harassing behaviour are due to dyslexia?”. Dr Harrison’s answer was “I am unaware that dyslexia per se is considered to be a cause of bullying and harassment.  Indeed, I would say that the opposite is more likely to be the case, ie people with dyslexia may be the victims of bullying by others. Dyslexia may be associated with other conditions.  This has been termed neurodiversity.  Examples of other conditions include dyspraxia, dyscalculia, ADHD and Autism Spectrum Disorder. … As a consequence of having neurodiversity, low self esteem may develop leading to depression and anxiety.  People who are increasingly anxious or depressed may behave erratically and may display irritability and short temper and lack of tolerance of others.”

The EAT dispatched with this case quickly (and in my view correctly) as follows (paragraph 24):

So far as depression is concerned, on which Mr O’Dair places considerable reliance for his aggregation argument, on the evidence placed before the Tribunal we see from the later letter of 25 July 2012 from Professor Harrison to Mr Kuku, the BMA representative Senior Employment Advisor acting for the Claimant, the Professor’s  view of the Claimant’s anxiety was as follows:

“… Based on my own assessment, I had formed the view that she had developed an adjustment disorder including anxiety and depression.  Although I have not had contact with the MedNet psychiatrist, it appears that there is an external opinion that Merran is suffering from severe stress and reactive depression.  In my judgement I think this is due to the effect of the investigations that have taken place, the outcome of the first investigation which placed her on a final warning and concerns that more complaints have been made about her. …”

That is a clear opinion expressed that any anxiety and depression observed in the Claimant was caused by the processes which led to her dismissal.  In other words the investigations into her conduct and what happened thereafter.  They do not, in our judgment, lend support to a suggestion that the Employment Tribunal erred in failing to hold that the Claimant was suffering from depression at the material time, whether or not that was to be relied on as constituting the disability for the purpose of their claim before them standing on its own alongside the dyslexia or as amalgamated with it, as in the Patel case, resulting from dyslexia.  On the evidence before the Tribunal, in particular Professor Harrison’s letter of 25th July 2012, on whose previous letter considerable reliance was placed, Professor Harrison was of the view that such anxiety and depression was caused by the inquiry into the complaints against the Claimant and was not present at or before the events which led to the inquiry.

In short, the claimant’s disability, dyslexia, could not be held to have been a made the claimant more prone than she would have been but for her disability to result is misconduct action (and in turn dismissal) proceedings being instituted against her. Therefore, the link between the claimant’s disability and the alleged substantial disadvantage (greater likelihood of being dismissed) was simply not made out. In passing even if the link was made out is would appear to me that, following Griffiths v Secretary of State for Work and Pensions the claimant would still have been unsuccessful since substantial disadvantage could not be established since a non disabled employee would also have been dismissed in such circumstances. That is a fundamentally unfair provision and one can only hope that the appeal against the EAT’s decision in Griffiths is overturned when the Court of Appeal comes to issue its judgement on the appeal (heard in February I understand).

As I have written before there may be cases (and even cases of criminal misconduct) where a finding of deliberate or intentional wrongdoing owing to disability cannot be sustained and, therefore, a finding of gross misconduct is impermissible. These are likely to be rare, however.

Trade union reps are much more likely to encounter situations where a disabled person may be more likely to resort engage in misconduct offences than they would but for their disability. In such cases there are potential arguments of failure to make adjustments, discrimination arising from disability and indirect discrimination.

An example would be precisely the type of case alluded to in the medical evidence in Thomson. A person on the Auspergers Spectrum can sometime have difficulty in interpersonal relationships. This disadvantage, especially in times of heightened stress, can lead to raised voices and comments being made in anger/exasperation. I have seen this type of situation result in disciplinary proceedings.

It is in this context that the Thomson judgement serves as a useful reminder to reps. What seems apparent was the EAT had no difficulty accepting that a normal practice to dismiss was a provision, criterion or practice for the purposes of the duty to make reasonable adjustments under the Equality Act 2010 (and by implication also under section 19 of the Act). And so, where a person’s disability has an effect on their conduct but not to the extent where it gives a complete defense on culpability grounds (as in Burdett) there is still the prospect, even if a non disabled person would be dismissed for the same act for a claim to be made the application of that practice represented a failure to make adjustments and/or indirect discrimination.

Case references:

Thomson v Imperial College Healthcare NHS Trust [2015] UKEAT 0218_14_3001

Griffiths v Secretary of State for Work and Pensions EAT/0372/13

Burdett v Aviva Employment Services Ltd [2014] UKEAT 0439_13_1411

Is Diabetes Necessarily a Disability?

diabetesIf a person has type 2 Diabetes are they necessarily disabled under the Equality Act 2010?

This was the question considered by the Employment Appeals Tribunal in Metroline Travel Ltd v Stoute [2015] UKEAT 0302_14_2601. The claimant had type 2 diabetes but was not on medication for this but did control his condition by controlling his diet, this basically comprised of the claimant avoiding fizzy drinks. The first tier tribunal made reference to the statutory guidance on the definition of disability which it was obligated to have due regard to. In particular, the Tribunal considered paragraph B12 of that guidance (emphasis added):

The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs.

On the basis of that guidance the Tribunal determined at a preliminary hearing that the claimant’s avoidance of sugary drinks was “a particular diet” and, therefore, that the claimant was disabled for the purposes of the Equality Act 2010. However, the claimant was to lose the substantive hearing, and no appeal against that finding was made.   In the appeal judgement (which concerned only the statutory definition of disability) the judge disagreed; at paragraph 11 it was found that “abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction.”

In coming to that view reference was also made to B7 of the statutory guidance, which states that a person may not be at impaired from carrying out normal day to day activities if they can reasonably amend their behaviour to avoid the impairment:

Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.

For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities.

In applying this paragraph the EAT also found (in addition to the finding that avoidance was not a particular diet that avoiding drinks such as Coca-Cola and Fruit Juices was a reasonable modification and that the normal day to day activity of eating and drinking did not have a substantial affect was not substantially affected (although how this was done without any regard to the personal circumstances of the (debarred) claimant I do not know. If you were a teetotal and unable to drink either a Coke or a Orange Juice because of Diabetes that does not leave much choice of liquid refreshment on an evening out! The effect of the avoidance may therefore be substantial, but this was ignored in the judgement.

Unfortunately, in Metroline there no opportunity for the Respondent (the claimant in the case) to put forward legal arguments and neither were there any representations (by the EHRC for example) made and so we are left with quite an unhelpful judgement. It seems a perverse decision to say avoidance of a particular very commonly consumed foodgroup is not “a particular diet” as the EAT said here; that would still leave the question of whether normal day to day activities were affected because avoidance was a reasonable modification which would be particular to the case in hand (but in the event was not considered).

Still, the judgement does throw into light the difficult question of what is reasonable modification; it is one I think there is very little guidance on for reps. It is also one prone for abuse by employers.  When making disability related complaints, particularly with conditions like diabetes, social anxiety, and stammering it would be worthwhile to spend a few moments considering whether there are modifications employers are likely to argue would be reasonable.

 

Changes of Contract and the Equality Act

ContractClaims under sections 19 and 20 of the Equality Act 2010 require that a provision, criterion or practice place (or in s.19 would place if applied) an individual with a protected characteristic at a substantial (in the case of section 20) or a particular (in the case of section 19) disadvantage.

In Edie & 15 Ors v HCL Insurance BPO Services Ltd  [2015] UKEAT 0152_14_0502 the Employment Tribunal asked the question as to whether the imposition of new – and detrimental – contractual terms could amount to a PCP with reference to section 19(1) of the 2010 Act. I don’t see why this would not equally apply to the PCP in section 20(3) of the Act.

In many ways this is a commonsense decision but the clear authority that a change of contract situation does not just raise prospects of a common law/constructive dismissal remedy but also (especially) protection on indirect discrimination grounds is a welcome one. This is because it gives a more tangible protection to workers than the theoretical option of constructive dismissal arguments (if you’re on the breadline walking away from an income even if a breach is grievous and fundamental it is not often a realistic option and this gives employers a license impose inequitable changes).

Certainly in my experience members in the PCS Union  are seeing a raft of changes in the workplace, changes that in my view are likely to amount to contractual variations. Many of these do place particular groups (expecially on age and disability grounds) at a disadvantage. So, for example, changes to a contractual grievance procedure that applies to all employees and make it harder to have grievances heard may still place disabled employees at a disadvantage if disabled staff are five times more likely to submit a grievance than non-disabled staff.

This doesn’t change much but at least it makes it a bit easier to force employers to objectively justify their discriminatory conduct since it is less easy to evade the issue by denying contract changes are a PCP.

A PDF of the judgement.