Two steps back.......

I have been turning my mind to the Employment Team seminar in December. This year I believe the seminar should deal at least in part with the changes in the area of disability discrimination that occurred in 2008.

It is now clear that Archibald v Fife Council was the judicial 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 Claimant to succeed.

Malcolm changes the comparator to a point where an incidence of the disability is separated from the disability itself. A simple example would be disability sick days. Prior to Malcolm such sick days would be related to the disability as someone who was not suffering the disability would not be suffering the sick days. Now disability sick days are to be compared with someone who is also suffering time off due to illness (but not a disability). This will make it quite permissible to dismiss someone for sickness absence and so long as it is a fair dismissal. There will be no need to justify the dismissal.

Richmond meanwhile makes it more difficult to establish that a disability is long term when the act complained of occurs only a few months into an illness. The likeliness of a disability lasting for 12 months or more is to be judged at the time of the alleged less favourable treatment. For many disabilities it is simply impossible to say whether they will last for 12 months or more in the first few months of illness.

Richmond appears to go further so as to prevent the Claimant from relying on medical evidence at the disability hearing. The Tribunal are to ask themselves what could an employer have reasonably known at the time?

This may come as a relief for smaller employers who discover at trial that the person who had only been sick for a few months was in fact disabled. Nevertheless people who previously did have claims will now not get over the first hurdle of establishing a disability.

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 success in reason relating to disability claims.

Peter D

Cases Cited

Clark v TDG Ltd (t/a Novacold) [1999] EWCA Civ 1091

Archibald v. Fife Council [2004] UKHL 32

Richmond Adult Community College v McDougall [2008] EWCA Civ 4

London Borough of Lewisham v Malcolm [2008] UKHL 43

Know your route

I was recently made aware of the perils of blindly following maps to employment tribunals found on the http://www.employmenttribunals.gov.uk/ website.

Normally I check where a tribunal or court is in relation to car parking or the train station by using a map service such as multimap or streetmap but I was kindly provided with a map for Bedford Tribunal printed off the employment tribunal website.

Easy I thought so I didn’t bother to check it. Bad mistake. The map bears little or no resemblance to the actual streets and pedestrian areas between the train station and the tribunal. I walked for 10 minutes to find I was in a pedestrian area that was not on the map. There were no signs to the tribunal. I was lost. I then found a taxi and gave him my map. Bad mistake. It confused him so much it took over 5 minutes for us to start our journey and that was only after he scratched his head in bemusement and asked a fellow taxi driver for directions (he was told the map was rubbish).

The route we took was not shown on the map at all and none of the roads were marked. It cost £5 and yet when I walked the return journey (the most direct route I could take from memory which did go through a pedestrian area) it took me a little over 5 minutes.

So if you are going to Bedford check out your route on a more reliable and accurate map site.
Amy K

Foreign Planes

I have always struggled with the concept of forum or in lay man’s terms where do I sue? I had believed that Serco Limited v Lawson [2006] UKHL 3 had settled the matter at least for pilots based in this country.

Then I came across a novel attempt by an employer to get around the age discrimination legislation and my sense of doubt returned. In short in order to claim unfair dismissal under the retirement provisions of the Employment Rights Act 1996 you have to be protected by the Age Discrimination Regulations (ADR). If you are excluded by the regulations then you do not get any retirement related protection.

Under Reg 10 there is what appears to be an exclusion at Reg 10(3) which on the face of it prevents those employed on a foreign registered aircraft from claiming protection under the ADR. Taken to its logical conclusion it would appear all an aircraft operator has to do is to register the aircraft abroad and hey presto no protection.

In fact this is a bogus argument and I had no need to panic. If you read the whole of Reg 10 it soon becomes clear that far from restricting an employee’s rights Reg 10(3) broadens the scope of the ADR to cover those persons employed on British aircraft irrespective of whether the employee qualifies under any other part of the ADR.

So in short pilots who operate foreign registered aircraft but who carry out some of their work in this country will be able to claim protection under the ADR and so the right not to be unfairly retired.

Peter D

Update (24/10/08)

The ET in Watford have just handed down a decision holding that Reg 10(3) does in fact exclude employees working on foreign aircraft but who work for at least part of their time in Britain. This matter needs urgent judicial examination in a higher Court as this ruling effectively prevents acts of discrimination carried out within the UK from being considered by an employment tribunal. Watch this space!

You don't always get what you want.......

I recently had a difficulty with the part-time worker regulations (PTW). There is a tension between the PTW and the fixed terms worker regulations (FTW) created when the PTWR were amended to allow direct comparison between workers on fixed term part time contracts and those on permanent full time contracts.

In my particular case the Tribunal were happy to find that the fixed term contract had been lawfully terminated but would not allow the termination of the fixed term contract to be used to justify less favourable treatment based on the workers part time status. Now I can understand that certain factual situations will mean that justification on the basis of being engaged on a fixed term contract won't work. Nevertheless it came as quite a shock to have the Tribunal find against my client and say that in no circumstances could the fact of someones fixed term status be relied on as justification. This is despite there being clear government guidance to the contrary.

So with a sense of pique and with the client needing to clarify the matter we went off to the Employment Appeal Tribunal. It was Monday, the sun was shining and the Judge was making all the right noises and appeared to understand the importance of the point. I should have realised when the Appeal Tribunal had been out for over 30 minutes that things were not looking good.

Sure enough back come the Appeal Tribunal who then launch into a judgment that asks more questions than it answers. Yes we think the original Tribunal was wrong but no we don't see how this would have changed the decision and we are not setting down any guidance on this matter. Appeal dismissed!

So what do I now advise client's who have employed people on fixed term part-time contracts? It is back to the usual, 'this matter is not free from doubt and is likely to be determined on the facts of each case'. The type of advice a client does not want to hear and certainly not the advice that I thought I would be giving after the appeal!

Peter D

Update (29/10/08)

The appeal on this one has been lodged with the Court of Appeal and the client is presently considering its options.