Employment update - 3 July 2009

Welcome to our fortnightly round-up of what's happening in employment law.

Disability discrimination – what does "likely" mean?

The House of Lords has confirmed that the word "likely" in the Disability Discrimination Act 1995 (DDA), used in provisions which supplement the definition of disability, means "could well happen", rather than "more probable than not". This distinction potentially makes it easier for employees to establish disability under the DDA.

In SCA Packaging v Boyle (which started in a Northern Ireland industrial tribunal), the employee suffered from hoarseness caused by vocal nodes. She adhered to a strict "management regime" to conserve her voice. This regime included sipping water throughout the day, staggering telephone calls and moving away from background noise. Following an operation to remove the vocal nodes, they did not return. Whilst the employee believed this was a result of her management regime, the employer believed that she had been cured and denied she suffered from a disability within the meaning of the DDA. The employee later brought claims for disability discrimination concerning the employer's failure to make adjustments and in connection with her subsequent dismissal.

The House of Lords considered whether the employee was disabled. Under the DDA, a person has a disability if he has "a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities". Two further provisions of the DDA, which supplement this definition, were relevant in this case:

• an impairment which ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities should be treated as continuing to have that effect if that effect is likely to recur.
• an impairment which would be likely to have a substantial adverse effect on the ability of a person to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it (e.g. in this case, the employee's management regime), should be treated as having that effect.

The House of Lords confirmed that the word "likely" in the above context meant "could well happen". Overruling earlier Employment Appeal Tribunal decisions, the House of Lords considered that the purposes of the DDA are best served by adopting the broader and less exacting test as to what is "likely". In this context, asking the question whether a particular outcome is more probable than not is simply inappropriate. On the basis of the lower standard, the employee was considered to be disabled for the purposes of the DDA.

The House of Lords also noted that the Guidance on matters to be taken into account in determining questions relating to the definition of disability, which tribunals must take into account, states that 'it is likely that an event will happen if it is more probable than not that it will happen'. However, Baroness Hale described this as a curious statement which appears to have confused "likely" and "probable". She stated that probability denotes a degree of likelihood greater than 50%. Likelihood, on the other hand, is a more variable concept. Lord Rodger also stated that while the Guidance can helpfully illustrate the way that a provision may work in practice, it cannot be regarded as an authority on a point of statutory interpretation.

Ending age discrimination in services and public functions - consultation

The Government Equalities Office has this week published a consultation document, outlining how it is developing policy proposals for exceptions from the age discrimination ban.

The Government plans to use the Equality Bill to outlaw unjustifiable age discrimination against adults aged 18 and over by those providing goods, facilities and services and exercising public functions. This consultation document sets out how its proposals are developing towards specifying those age-based practices for which it believes exceptions from the ban on age discrimination in services and public functions may be warranted. It covers three main areas:

• health and social care
• financial services
• other services, including commercial services such as group holidays and concessions for particular age groups

The consultation closes on 30 September 2009.

'Dual discrimination' clause proposed for Equality Bill

A new clause has been proposed for the Equality Bill which would protect individuals from discrimination based on a combination of two protected characteristics.

As noted in earlier Employment Updates, the Government's proposals are aimed at protecting people who experience discrimination because of a combination of two characteristics, such as black women or religious men. At present, individuals who experience such discrimination do not always have a remedy under the law and are often required to bring separate claims in respect of each protected characteristic, which does not necessarily reflect the discrimination which has actually occurred. The new 'dual discrimination' clause would therefore allow people to make a claim if they were directly discriminated against because of a combination of two relevant protected characteristics.

Vera Baird, Solicitor General and Equality Bill Lead Minister, has said: "People's identities are multi-faceted and complex, and we are delighted to bring forward an amendment to the Equality Bill which would reflect this. This clause would provide protection for people who at present would have to guess on what basis they have been discriminated against, wholly outside their dignity.

"Business will benefit if all the issues in one case can be dealt with together and there will be better access to justice for all. Protection against "dual discrimination" would be a progressive step forward and confirm our place as a world leader in the fight against discrimination and disadvantage."

New BIS guidance on TUPE

The Department for Business, Innovation and Skills (BIS), formerly BERR, has published a new guide on employment rights on transfers, under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE).

The BIS guide outlines the key provisions of TUPE and also reflects the changes to the employee liability information required under TUPE, which were made following the repeal of the statutory dispute resolution procedures on 6 April 2009.

BIS research on characteristics of rejected tribunal claims

BIS has published a report on its research into the characteristics of rejected employment tribunal claims.

The research is based on telephone interviews with over 1,000 claimants whose claims were initially rejected. The report explores the use of internal procedures prior to the claim, the use and impact of advice and representation, the outcomes of the disputes and claimants' post-claim experiences.

The findings include the following:

• 48% of claimants reported discussing the dispute which gave rise to the claim with the employer
• most claimants felt strongly that employers typically did not want to acknowledge the relevant problem and accordingly they did not respond adequately to it
• almost all claimants sought advice or guidance before bringing a claim, with two in five of those resubmitting their claims after securing further advice
• settlement was more likely where there was discussion between the parties prior to the claim
• one in seven claimants still work for the employer against whom they brought the claim.

New guidance on dealing with gay and religious staff

The charity, Stonewall, has published guidance for employers on how to manage potential conflicts between lesbian, gay and bisexual workers on the one hand and religious workers on the other. The guidance includes case studies from various organisations and examines how to prevent and respond to incidents in the workplace

Cost of heatwave?

The recent heatwave, however welcome, may lead to lost profits and reduced productivity for businesses, according to the Centre for Economics and Business Research (CEBR).

CEBR has predicted that the heatwave could result in costs of up to £162 million a day in lost productivity alone. They have predicted further costs through staff arriving late because of delayed transport or rush hour avoidance (£4 million a day), staff not turning up to work (£15 million a day) and also reduced spending because of the weather (£6 million a day).

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