|
|
|
|
|
|
|
March/April 2010 |
|
Welcome to the April 2010
issue of the CLO Employment Update. This month, we have case law on
disability related discrimination where an employee was dismissed for
misconduct and the first reported ET judgement on carry-over of unused
holiday where the employee has been unable to take the holiday due to
sickness. For further information on
any of these legal developments or employment law advice, telephone 0131 275
7833 or email a member of the CLO Employment Team: Murdo Macleod, Hazel Craik,
Norma Shippin,
Rhidian Davies or Chris Reeve. If you have any queries about
our programme of seminars, or would like to discuss your organisation’s
individual needs in relation to training, please contact your own employment
team contact, or, if unavailable, Murdo Macleod,
the team leader. A summary of this newsletter
can be made available in large print format, audio tape or Braille.
Please call this number: 0131 275 6246. All contents of this email
update are for information only and are not to be construed as legal advice
and should not be treated as a substitute for specific advice. |
|
|
Disability
Related Discrimination |
|
|
Rejection of disability-related explanation for
misconduct did not make dismissal discriminatory (but in this case did make
it unfair) … |
|
|
Annual leave
entitlement |
|
|
Tribunal finds holiday during sickness could be
carried over to next year … |
|
|
In The City of Edinburgh Council v Dickson
the EAT upheld a tribunal's finding that a diabetic employee's dismissal for
gross misconduct was unfair because the decision-taker had refused to engage
with, or properly investigate, the employee's defence that his conduct
resulted from a hypoglycaemic episode. However, the EAT overturned
the tribunal's findings on disability discrimination. The fact that the
employee's explanation related to his disability did not mean that the
council's conduct in rejecting that explanation was on the grounds of his
disability or for a reason related to it. Legal Background A also discriminates against
B if, for a reason related to B's disability, A treats B less favourably than
A treats or would treat someone to whom that reason does not apply, and A
cannot show that the treatment is justified. This has become known as
"disability-related discrimination". The scope of
disability-related discrimination has been drastically narrowed by the House
of Lords' decision in the housing case, Mayor and Burgesses of the London
Borough of Lewisham v Malcolm [2008] UKHL 43. Following these
authorities, a "narrow" comparator approach now applies to
disability-related employment claims, which makes them barely distinguishable
from direct disability discrimination claims. In the case reported below,
the EAT considered whether the employer's decision to dismiss amounted to direct
disability discrimination or disability-related discrimination. On 6 June 2007, Mr Dickson
was seen viewing images of a "seriously pornographic" nature on
a computer in the community wing. A disciplinary hearing was convened on 28
February 2008 at which he explained that, although he had no recollection of
the incident, his out-of-character behaviour must have resulted from a
hypoglycaemic episode. At the time of the incident his diabetes was poorly
controlled due to a mis-prescription of the wrong
strength of insulin. The council's Neighbourhood
Manager did not accept that explanation, believing that Mr Dickson's conduct
was conscious and deliberate. Mr Dickson was summarily dismissed with
immediate effect and his subsequent appeal against the dismissal was
unsuccessful. Mr Dickson brought
proceedings in the employment tribunal claiming both unfair dismissal and
disability discrimination. The tribunal found that Mr Dickson had been
unfairly dismissed, essentially because the council had made no real attempt
to investigate or understand Mr Dickson's defence that his conduct was due to
his medical condition. It made a reinstatement order on the basis that it
would be practicable for the council to comply with such an order and Mr
Dickson had not caused or contributed to his dismissal. The tribunal also held that
Mr Dickson's dismissal constituted direct disability discrimination and that
if it was wrong in that, it would have found it to have constituted
disability-related discrimination. The council appealed against
the unfair dismissal and disability discrimination decisions and against the
order for reinstatement. Unfair dismissal claim The tribunal was also
entitled to conclude that a fair investigation would probably have held that
Mr Dickson was not responsible for his actions on the occasion in question. Direct disability discrimination claim The EAT concluded that, in
concentrating on identifying the correct comparator rather than whether the
treatment was on grounds of disability ("the reason why question"),
the tribunal had reached the wrong result. The "reason why question" involves the tribunal looking at what was influencing the mind
of the decision-taker to determine whether the disability formed part of the
reason for the less favourable treatment. There was no reason to
suppose that the fact that Mr Dickson was a diabetic influenced the
Neighbourhood Manager's thinking at all. The tribunal had wrongly concluded
that because the explanation which the decision-taker rejected was a "disability explanation", it followed that the rejection of the explanation was on the
ground of that disability. The tribunal had also failed
to build into its description of the hypothetical comparator the feature that
their defence - that is, of some non-disability-related automatism - was also
one which the council "failed to understand". Disability-related discrimination claim The tribunal had also erred
in finding that if it was wrong about the direct disability discrimination
claim, it would have found in Mr Dickson's favour on the basis of
disability-related discrimination. As noted by Mr Justice Underhill P, this
was no longer possible since Malcolm: "On the present state of the authority, the two ways of putting the
case stand or fall together". |
|
Further resources
and Information |
|
|
|
|
In reaching this decision,
the tribunal interpreted the Working Time Regulations 1998 in line with the
EC Working Time Directive by reading into regulation 13(9) (the provision
preventing carrying over of statutory holiday) words allowing holiday to be
carried over to a subsequent holiday year if it coincided with sickness
absence. This is the first tribunal decision giving effect to the ECJ's decision in Pereda v
Madrid Movilidad SA. Legal background These provisions are
implemented in In Pereda
v Madrid Movillad SA the ECJ made it clear that a
worker who is incapacitated during a period of previously-scheduled statutory
holiday should, as far as the Directive is concerned, have the right to
reschedule the holiday to a later date. Moreover, if the worker remains sick
until the end of the relevant leave year, the Directive requires him to be
allowed to reschedule that holiday in the next leave year. Interpreting domestic legislation in line with a directive In EBR Attridge
Law LLP and another v Coleman No (2) the EAT considered the circumstances in
which a court or tribunal can find it "possible" to interpret
domestic law in line with a directive. In Coleman the EAT concluded that
there was nothing "impossible" about adding words to the provisions
of the Disability Discrimination Act 1995 (DDA) so as to cover associative
discrimination. Although such an addition would change the meaning of the
DDA, this did not make it impermissible as the real question was whether the
new meaning was compatible with the "underlying thrust" or
"scheme" of the domestic legislation. In January 2009 Mr Shah broke
his ankle and was absent from work between 15 January to 18 April 2009. His
sickness absence, therefore, overlapped with his booked period of holiday.
However, during this absence he received contractual sick pay and was also
paid holiday pay, at a higher rate, for the twelve days leave he had booked. On 4 April 2009 he wrote to
his employer, First West Yorkshire Limited (FWYL), asking to reclaim his 12
days' holiday. FWYL responded on 21 May that the holiday could not be
reclaimed as it related to a previous holiday year and had therefore been
"lost". On 16 September 2009 Mr Shah
submitted a claim for loss of holiday under the WTR and unlawful deduction
from wages under section 13 of the Employment Rights Act 1996. FWYL argued
that:
Decision The tribunal noted that Mr
Shah's primary claim was for his lost holiday entitlement, rather than
unlawful deductions from wages. In any event, Mr Shah accepted that if he was
successful in carrying over the 12 days' holiday to the next holiday year, he
may be required to repay the corresponding holiday pay received during his
sick leave. The tribunal held:
The tribunal therefore
construed the WTR by adding the words set out below. Read this way, Mr
Shah was entitled to take the holidays which he was prevented by ill-health
from taking in March 2009 at some subsequent time in the following leave
year. Words added to the end of
regulation 13(9) of the WTR by the tribunal "Save where a worker has been
prevented by illness from taking a period of holiday leave, and returns from
sick leave, covering that period of holiday leave, with insufficient time to take
that holiday leave within the relevant leave year; in which case, they must
be given the opportunity of taking that holiday leave in the following leave
year". In interpreting the WTR, the
tribunal adopted the same approach as the EAT in Coleman. As the strict
language of regulation 13(9) of the WTR itself makes it impossible to give
the WTR a purposive interpretation in line with Pereda,
the tribunal read in additional words. However, while the EAT's
interpretation of the DDA in Coleman is binding on tribunals and the EAT, the
tribunal's interpretation of the WTR in Shah is not. Nevertheless, in light
of the incompatibility between regulation 13(9) and the Directive (as
reinforced by Pereda), it seems likely that
tribunals will apply this decision. |
|
Further resources
and Information |
|
|
|
Company details and info |
|
|
litigation |
*******************************************************************
This email has been received from an external party and
has been swept for the presence of
computer viruses.
*******************************************************************