On Notice
December 2009
Authors:
Noel Deans
noel.deans@klgates.com
+44.(0)20.7360.8187
Paul Callegari
paul.callegari@klgates.com
+44.(0)20.7360.8194
Daniel Wise
daniel.wise@klgates.com
In this our Christmas edition of On Notice we consider recent EAT
decisions on an employer's duty to make reasonable adjustments
(DWP v Alam), whether a belief in climate change is a
philosophical belief (Grainger plc v Nicholson) and discrimination
by association (Coleman v Attridge Law). We also report on the
latest developments relating to the possible changes to the default
retirement age and the Agency Workers Directive.
When are employers exempt from making reasonable
adjustments?
+44.(0)20.7360.8271
In DWP v Alam the EAT has given new guidance on when an employer is exempt
from having to make reasonable adjustments under the Disability Discrimination
Act.
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In this case, the employee suffered from depression (including loss of temper and
severe headaches) and was disabled under the Act. One day he arrived at work late
and requested if he could leave early for a job interview. When this was refused he
simply left. At the subsequent disciplinary meeting he was given a 12-month
written warning. He asked his employer to take into account mitigating
circumstances, including his failure to take medication and his financial
difficulties. He brought a claim for disability discrimination based on the
employer’s failure to make reasonable adjustments for him.
The claim succeeded before the ET but was dismissed by the EAT. The EAT said
that two questions need to be asked to determine whether an employer is exempt:
a.
Did the employer know both that the employee was disabled and
that his disability placed him at a substantial disadvantage in
comparison with persons who are not disabled?
b. If not, ought the employer to have known both that the employee
was disabled and that his disability was liable to place him at a
substantial disadvantage in comparison with persons who are not
disabled?
The employer will be exempt from any duty to make reasonable adjustments if
both those questions are answered no. In the present case, the employer did not
actually know about the employee’s depression. So question (a) was answered no.
As to question (b), while the employer ought to have known that the employee
suffered from depression, it could not be said that it ought to have known that that
put him at a substantial disadvantage in this particular scenario. So question (b)
was therefore also answered no.
This is an important case for employers. In the March 2009 edition of On Notice
we reported the EAT decision in Eastern and Coastal Kent PCT v Grey on the
same issue. In that case the EAT suggested a slightly different approach. It said
that an employer must satisfy four criteria which, although on the face of it appear
similar to the new Alam test, were set in the ‘negative’ and on the facts of the Grey
decision imposed a higher burden on employers.
On Notice
These were as follows:
a.
The employer must not know that
the employee has a disability;
b. The employer must not know that
the disabled person is likely to be at
a substantial disadvantage compared
with others who are not disabled;
c.
The employer could not reasonably
be expected to know that the person
had a disability; and
d. The employer could not reasonably
be expected to know that the
disabled person is likely to be placed
at a substantial disadvantage in
comparison with persons who are
not disabled.
The EAT appear now to have taken into
consideration significant employer criticism of
the Grey test and how it has been applied in
Tribunals. Certainly on the facts of the decision
in Alam this new test can be seen as lowering the
threshold for employers. This spells good news
for companies that are faced with disability
discrimination claims, particularly where the
disability has not been disclosed and the
symptoms to which the disability gives rise are
not immediately recognisable as linked to any
kind of disability.
He brought a discrimination claim in the ET. The
ET found that his beliefs could in principle
amount to a philosophical belief protected by the
Regulations. This was upheld by the EAT, which
suggested five general criteria for determining
whether such a belief would be protected: (1). it
must be genuinely held; (2). it must be a belief not an opinion or viewpoint based on the present
state of information available; (3). it must be a
belief as to a weighty and substantial aspect of
human life and behaviour; (4). it must attain a
certain level of cogency, seriousness, cohesion
and importance; and (5). it must be worthy of
respect in a democratic society and not
incompatible with human dignity and with the
fundamental rights of others. The employee’s
belief in climate change was found to have met
these criteria.
Climate change as a belief protected
by law
This case is significant for employers because it
is the first reported case of an employee
successfully arguing that a belief which is not
similar to a religious belief can be protected
under the Regulations. As a trend in the
interpretation of these Regulations this could
have quite worrisome consequences to
employers as allegations of discrimination on the
grounds of what are perceived to be
‘philosophical beliefs’ become much wider in
scope. Additionally as strongly held views on the
issue of climate change become more and more
common within the UK workforce,
discrimination claims based on this belief in
itself may well increase considerably.
In Grainger plc v Nicholson, a much-publicised
decision, the EAT has decided that a belief in
man-made climate change can amount to a
philosophical belief protected under the
Employment Equality (Religion or Belief)
Regulations 2003. The case has given rise to
concern among employers that this decision may
open the flood gates to many more claims of its
kind.
However, it is important to emphasise that the
case has only decided a preliminary issue –
whether the belief was capable of protection.
The trial is still to take place. The employee will
have to prove that he was dismissed because of
his belief – which is disputed. If this causal link
is not established the claim will of course
ultimately fail.
Under the Regulations a person discriminates
against another if he treats him less favourably on
the grounds of his religion or belief. “Belief”
means “any religious or philosophical belief”. In
this case the employee was made redundant. He
argued that he was selected for redundancy
because of his beliefs about climate change,
which he said constituted a “philosophical
belief”. The employee said that these beliefs were
not merely an opinion, but a belief which affected
how he lived his life (including choice of home,
travel, food etc.).
The EAT also noted that in every case the
employee may be cross-examined about the
belief so as to establish its genuineness and
whether it qualifies for protection. This will not
be assumed in each case. The EAT further
indicated that beliefs in, for example, pacifism,
Darwinism, vegetarianism and socialism might
be protected as philosophical beliefs, if they
qualified on the facts of each case. But racist or
homophobic beliefs may not qualify since they
are not compatible with others’ human rights.
December 2009
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On Notice
Discrimination by association and
the Equality Bill
The EAT has given another important judgment
in the long running case of Coleman v Attridge
Law, which deals with whether the Disability
Discrimination Act prohibits discrimination by
association.
In this case the employee claimed she was treated
less favourably than other employees because she
was the primary carer of a disabled child. She
brought a discrimination claim in the ET. The ET
referred to the ECJ the question whether the
relevant EU law (the Equal Treatment
Framework Directive) protected not only disabled
employees from direct discrimination and
harassment, but also employees (such as carers)
associated with someone with a disability. The
ECJ ruled that it did. See the September 2008
edition of On Notice for more details.
However, none of this was apparent from the
wording of the Disability Discrimination Act.
When the case was sent back to the ET it had to
decide whether the Act should be interpreted in
this way and, accordingly, whether the employee
could rely on it. The ET decided that it should.
This was upheld by the EAT which effectively
added new sections to the Act so that it complied
with the ECJ’s judgment. The EAT said that
although this was an extension of the Act, it was
compatible with the ECJ judgment and necessary
to bring it into line with EU law.
The case is important for employers because it
considerably widens the scope of the Act. The
position of carers (of whom there are over 6
million in the UK) in particular is likely to be
affected. It may also give rise to other forms of
discrimination by association outside of the carer
grouping. Further, the effect of the case is likely
to be incorporated into statute. The Government
has recently published a new Equality Bill. It
announced in April 2009 that the Equality Bill
would codify the principles in Coleman v
Attridge Law.
Latest on possible changes to the
default retirement age
The Government has recently announced that the
review of the default retirement age which was
planned for 2011 has been brought forward and is
to be completed by February 2010. This is an
important development and one which is likely to
affect the majority of employers.
The background to the consultation is as follows.
Effective from October 2006, the Employment
Equality (Age) Regulations introduced a national
default retirement age of 65. This means that
employers could lawfully terminate employees
on the grounds of age at 65 and that employees
only have the right to request to work beyond
then. Employers have a duty to consider such
requests, but no obligation to grant them.
The default retirement age was challenged in the
Heyday case, which has been covered in
previous editions of On Notice. In essence,
Heyday (a charity) contended that the default
retirement age was incompatible with EU law.
The case went to the ECJ in 2007 and back to the
High Court in 2009, but the challenge ultimately
failed. Accordingly, the default retirement age of
65 is currently still in force.
At present, the Government has not committed
itself to any policy and is still in the process of
consultation. It also remains to be seen whether
any changes are made before the next General
Election. There are a number of possible changes
that could be made. One is to maintain the status
quo, although this is thought to be unlikely.
Another is to raise the default retirement age to a
higher age (e.g. 67). This would leave employers
with the same legal framework as currently
exists, except with a slightly different default
retirement age. Another option would be to
abolish the default retirement age entirely. That
would leave employers to choose whether to
impose their own internal retirement ages (which
would require objective justification) or to
abolish retirement ages themselves.
Details of the consultation are available on the
Government website. Further developments will
continue to be reported in On Notice.
Update on the Agency Workers
Directive
The Government has also recently opened a
second consultation on the Agency Workers
Directive (the first closed in July 2009). The
Directive was agreed to by the Member States
and the European Parliament in December 2008
and Member States have until 5 December 2011
to implement it.
The basic principle of the Directive is that
agency workers are to be treated the same as
employees of the hirer with regard to basic
working conditions (such as duration of working
time, overtime, breaks and holiday entitlements).
December 2009
3
On Notice
However, it gives each country significant room
for manoeuvre. Most significantly, it allows each
country to decide how long an agency worker
needs to work before qualifying for equal
treatment and, to a degree, what will count as
basic working conditions.
The Government’s current proposal is to require
equal treatment after an agency worker has been
in a given job for twelve weeks. That is based on
an agreement between the CBI and the TUC in
May 2008. It is also proposed that primary
liability for any default will lie with the agency
rather than the hirer but that the agency should
have a defence of having taken reasonable steps.
placing agency workers will also need to follow
this law as it develops to understand how this
will affect their business models and what
changes may need to be made in their approach
to issues. For example the current proposal to
impose primary liability on the agency rather
than the hirer would give rise additional burden
for the agency itself.
Responses to this consultation must be received
by 11 December 2009. Further details are
available on the Government website and any
future developments will be reported here.
May we take this opportunity to wish everyone a
merry Christmas and a happy New Year.
This is an important issue for UK employers
since agency workers are very commonplace in
the UK (a third of all agency workers in the EU
work in the UK) and provide important flexibility
for employers. Certainly recruitment firms
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December 2009
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