Cases

Working Time Regulations
Disability Discrimination Act
Discrimination Generally
IE35 and Sub-Contractors generally
Discrimination based on Sex

1. Working Time Regulations

(a) Sleepy Bus Drivers (but applicable to all mobile workers)

Bus drivers are not entitled to a rigid 11 hours’ rest in each 24-hour period (under WTR reg 10(1));

nor are they entitled to ‘compensatory rest’ under reg. 24 (being an equivalent period of rest, but at different times);

instead, they are entitled to ‘adequate rest’ under reg. 24A (regular but undefined rest periods, so as to prevent them injuring themselves or others through fatigue).

(b) Bank Holidays and Part Time Workers

An employer who does not give a part-time employee pro rata days off work to reflect Monday bank holidays is not discriminating under the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000. An employee worked on Wednesdays, Thursdays and Fridays. His employer allowed people to have bank holidays off, but only if they actually worked on the bank holiday. The employee claimed that amounted to less favourable treatment on grounds of his part-time status, as most bank holidays fall on a Monday. It was held that the treatment must be solely on grounds of the worker’s part-time status, but because the employer would have treated a full-time worker who did not work on a Monday in the same way, so his appeal was dismissed.

2. Disability Discrimination

(a) Dyslexic Policeman is Disabled

A decision which previously ruled the claimant as abled was overturned. Where previously the claimant’s (newly diagnosed) diagnosis looked at what he could do and that the impact was relatively small, it was concluded that he was not disabled. Medical evidence suggested that he ought to be given 25% extra time for completion of written and financial literacy. It was held that a person who needed 25% longer to complete an examination because of his dyslexia was at a substantial disadvantage to the position if he did not have dyslexia, and he was therefore disabled within the meaning of the Disability Discrimination Act 1995. It stated that the correct comparison to determine disability is to compare what the claimant can do and can not do as a result of the impairment and not to compare them to the average person in the population.

(b) Pay Out for Bullied Epileptic Woman

A business woman who claimed she was bullied by senior managers at Estee Lauder is in line for a £225,000 compensation payout.

(c) Three R’s Could Land Bosses in the Dock

Testing applicant’s basic reading and writing skills could land employers in court, following a landmark case which ruled mild forms of dyslexia to be considered as a disability.

(d) Working with Cancer

Cancer is now deemed to be a disability under the DDA 1995. The CIPD, in association with Working with Cancer charity, has produced a booklet entitled ‘Cancer and working: guidelines for employers, HR and line managers’, containing guidance on best practice for employers dealing with employees suffering from cancer, together with information on adjustments that can be made. This is a very worthwhile document for all employers, and for those litigating cases involving employees suffering from cancer.

(e) Disabled employees can be relocated to permit “reasonable adjustments”

Garrett was diagnosed with an illness causing pain, fatigue and muscle stiffness. She requested adjustments to her equipment, shifts and duties. A risk assessment concluded that she would be unable to cope as the sole manager in an emergency. Lidl wanted to use an express mobility clause in her contract to move her to a store four miles away where there were other managers. She complained. The EAT held that an employer can comply with section 4A of the Disability Discrimination Act 1995 by making reasonable adjustments at a different site from the employee’s usual workplace.

3. Discrimination Generally

(a) Age Discrimination Case in Ireland

The Equality Tribunal in Ireland found in favour of an applicant in an age discrimination case. Mr Cunningham lied about his age on the agency registration form, he put 37 when he was in fact 47. His reason for doing so was that he felt that this information was irrelevant to the post in question. The agency refused to put him forward for the job as he had lied about his age on the form. The Equality Tribunal found in favour of Mr Cunningham. The Agency could not defend its case saying that Age was not a consideration in the application as it was blatantly asked. Mr Cunningham was awarded 5,000 Euros (approximately £3,400) for distress and breach of his rights.

(b) Non-genuine job applicant did not suffer age discrimination

A 51-year-old accountant applied for 20 jobs for which she was overqualified. SHe replied to adverts aimed at newly qualified accountants with little experience. SHe lodged discrimination claims ainst the 11 agencies that rejected her applications. Six settled but five proceeded to the full hearing. Dealing a blow to serial litigants, the EAT agreed with the tribunal that Keane had no real interest in the jobs she’d applied for, and could not possibly have suffer detriment under the Employment Equality (Age) Regulations 2006 by being rejected, even if the ads could be found to be indirectly discriminatory on age grounds. An application must be genuine before a statutory discrimination can be suffered.

(c) Homophobia Pay Out

Clifford Chance, the world’s biggest law business, has paid out an undisclosed sum in settlement of what is believed to be the first claim against a law firm for discrimination on grounds of sexual orientation.

4. IE35 and Sub-Contractors generally

(a) Temporary Deemed Employee

In Hawley v. Luminar Leisure Ltd the Court of Appeal held that a nightclub which subcontracted its security to another company could be deemed to be a temporary employee of that company. The employee was subject to the nightclub’s code of conduct and was supervised by the nightclub’s manager. Where a Company exercises sufficient practical control over a sub-contractor/sub-contractor’s employee the Courts may make the Company a ‘temporarily deemed employer’ for the purpose of liability. Important factors taken into account are whether the person was subject to the Company’s code of conduct, where they work and how the work has to be done.

5. Sex Discrimination

Companies that pay staff relating to service may have to scrap schemes after a landmark ruling that they might discriminate against women due to time off having children. Christine Wilson, an inspector with the Health and Safety Executive, claimed her employer’s pay agreement was unfair because it linked pay to length of service for upto 10 years, resulting in three male collegues in the same role were paid more than Mrs Wilson. The Equality and Human Rights Commission intervened the case arguing that linking salaries to length of service disadvantages women who take time out to have a family and so do not have the same discontinuous length of service as men.

On average men working full time are paid 12.8% more than women though the gap has narrowed from 17.4% a decade ago.