This article was provided by Daniel Barnett for Lawzone.

(a) ECJ Opinion on Maternity Benefits
The Advocate General has provided his opinion in C-476/99 Lommers v Minister van Landbouw, Natuurbeheer en Visserij. At present, it is available in French, German and Dutch only.

According to the Federation of European Employers, he has advised the ECJ that is lawful for an employer to offer subsidised childcare to female employees in preference to male employees. They state that “in an extensive and frequently convoluted rationale, [Advocate-General] Alber sets aside the views of the European Commission which clearly opposed such a measure as not constituting legitimate positive action under the 1976 Equal Treatment Directive.” The case now goes to the ECJ for a final decision sometime next year.

(b) EAT – Disability Discrimination

MILLS v LONDON BOROUGH OF HILLINGDON (Lord Johnstone, 18th October 2001)
In order for the duty to make reasonable adjustments under the Disability Discrimination Act 1995 to bite, the disabled employee needs to establish that an “arrangement made by or on behalf of an employer” places him at a substantial disadvantage. The EAT considers that the word “arrangement” envisages positive steps taken by the employer, and an arrangement cannot arise by means of an omission. Thus the failure to pay a disabled employee his sickpay through administrative error was not capable of amounting to an arrangement, and thus not capable of triggering the duty to make reasonable adjustments.

(c) EAT – Discrimination – Inferences

PROSPECT CARE SERVICES v CURTIS (Lindsay J., 6th November 2001)
A further gloss on the Court of Appeal’s decision in Anya v University of Oxford (see LawZONE Employment Law Newswire 24/3/01) – although the EAT takes pains to insist it is following Anya and not limiting its application. Anya provided that in discrimination cases, the employment tribunal must examine every issue raised by an Applicant, and make findings of fact on each of them. However, this case states that the tribunal does not need to go through every allegation raised by the applicant, when the issues raised are “otiose”.

Daniel Barnett
December 2001