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Ann Bevitt

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Employment law takeaways for September

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Employment law takeaways: our bitesize legal updates for busy HR professionals, provided by Ann Bevitt of Morrison and Foerster. This month, equality, incapability and disability discrimination.

1. Community Dental Centres Ltd v Sultan-Darmon  – Unfettered right of substitution fatal to worker status
2. Aylott v Stockton on Tees borough Council  – Identifying the proper comparator in disability discrimination cases
3. Brownbill and ors v St Helens and Knowsley Hospital NHS Trust  – Equal Pay Act requires equality of individual terms, not equality of overall remuneration packages or fairness of pay

Community Dental Centres Ltd v Sultan-Darmon – Unfettered right of substitution fatal to worker status

Mr Sultan-Darmon, a dentist, worked for a dental practice.  Both parties agreed he was not an employee.  Mr Sultan-Darmon claimed he was a worker and brought an unlawful deductions claim against the practice. The EAT held that Mr Sultan-Darmon’s right to provide a substitute meant that he could not be a worker, as he was not obliged to “perform personally any work or services” within the meaning of section 230(3) of the Employment Rights Act 1996. The fact that he was obliged personally to find a substitute did not equate to personal performance.

Takeaway: This case carefully reviewed all of the authorities on worker status and decided that where a genuine right of substitution exists, there cannot be worker status.


Aylott v Stockton on Tees borough Council – Identifying the proper comparator in disability discrimination cases

Mr Aylott suffered from bipolar disorder and following an outburst at work, for which he was disciplined, and periods of sick leave, he was dismissed for incapability. The employment tribunal held that the Council had directly discriminated against Mr Aylott and failed to make reasonable adjustments. It also held that Mr Aylott’s dismissal was an act of disability-related discrimination contrary to section 3A(1) of the Disability Discrimination Act 1995.  The tribunal applied Clark v TDG Ltd t/a Novacold  and concluded that the hypothetical comparator for disability-related discrimination was someone whose circumstances were the same as Mr Aylott but who did not suffer from bipolar disorder. On appeal, the EAT rejected the tribunal’s findings of disability discrimination on all counts.  Regarding the finding of disability-related discrimination, the EAT held that the House of Lords’ decision in the housing case of London Borough of Lewisham v Malcolm  had overruled the Novacold comparator approach.  Mr Aylott appealed to the Court of Appeal.

Regarding the claim of disability-related discrimination, the Court of Appeal agreed with the EAT that the correct hypothetical comparator following Malcolm was someone who shared Mr Aylott’s sickness record and behavioural problems but did not suffer from his disability, and held that Mr Aylott’s dismissal was not disability-related discrimination. Regarding the claim of direct discrimination, the Court of Appeal disagreed with the hypothetical comparator selected by the EAT and re-instated the tribunal’s finding of direct discrimination. It confirmed that the correct hypothetical comparator was a person who was off work for a similar number of days but who did not have bipolar disorder. This means that the circumstances arising from, or characteristics of, an employee’s disability should not be included in the hypothetical comparator for the purposes of determining a claim of direct disability discrimination. 

Takeaway: The identification of the correct hypothetical comparator in disability discrimination claims is often tricky. This case provides some helpful guidance but, by establishing different comparator test for direct discrimination and disability-related discrimination claims, the position remains complicated. The Court of Appeal noted that this situation will be simplified by section 15 of the Equality Act 2010 which will in effect re-establish the comparator test set out in Novacold for disability-related discrimination claims.
 
Brownbill and ors v St Helens and Knowsley Hospital NHS Trust – Equal Pay Act requires equality of individual terms, not equality of overall remuneration packages or fairness of pay

The claimants had terms in their contracts providing for enhanced payments for working unsocial hours, which were less favourable than similar terms in their male comparators’ contracts. However, the claimants earned more than their comparators if their benefits were amalgamated.  The claimants argued that section 1(2) of the Equal Pay Act 1970 operated so as to modify their unsocial hours pay terms to match the term in their comparators’ contracts.

The EAT held that the correct approach does not permit a court to look at the overall contractual position of each parties, nor their positions in relation to pay as a whole. The terms providing for enhanced rates for work done at unsocial hours were distinct contractual terms, enabling them to be compared distinctly, and this was the approach that should be taken.

Takeaway: An “overall package” approach to equal pay tends to obscure discriminatory pay practices. Although an “individual term” approach could result in claimants receiving higher overall pay than their comparators by cherry-picking the favourable elements of different remuneration packages, is immaterial.  The bottom line is a man and a woman performing equal work must enjoy the same individual terms unless the difference can be shown to be because of a material factor other than sex.

And finally…neither meaning what you say nor saying what you mean
: in a recent victimisation case, the employment tribunal recommended that the respondent send a letter to third parties stating that its employee accepted all criticism of the claimant was unfounded (even though the employee obviously did not). The EAT held that the terms of the recommendation should be amended so as not to require the employee to make statements with which she did not agree. 
 

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