Employment Law Updates

The following legal developments come from Russell, Jones & Walker solictors' Union Law Express Issue 1.

Loss of Earnings due to Stigma
Chagger v Abbey National Court of Appeal 13 November 2009
This is a significant case on loss of earnings compensation in discrimination and dismissal cases. The Court recognised that the stigma resulting from having been dismissed and bringing proceedings might affect the view taken by a tribunal of the loss of earnings award. This could result in an award for a longer period or even a modest lump sum if the Claimant was about to be dismissed lawfully in any event so had no actual financial losses.
Further, the fact that an extremely high figure was being awarded (over £2.5 million) was capable of being an exceptional circumstance entitling an employment tribunal to reduce the uplift for failure to follow statutory procedures below what would otherwise be the minimum of 10%.
COMMENT: a welcome decision which should assist in negotiating settlements but in practice may be rarely applied since exceptionally here the Claimant had evidence of attempted mitigation described by the ET as “the most thorough, extensive and well-documented any member of the tribunal could recall ever having seen.”
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1202.html

Reasonable Adjustments
Secretary of State v Alam EAT 9 November 2009
Section 4A(3) of the Disability Discrimination Act 1995 sets out when the duty to make reasonable adjustments will not apply and this decision confirms that there are two questions to be answered:

1. Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)? If the answer to that question is: "no" then there is a second question, namely,
2. Ought the employer to have known both that the employee was disabled and that his disability was liable to affect him in the manner set out in section 4A(1)?

If the answer to that second question is: "no", then the section does not impose any duty to make reasonable adjustments. The employer will be exempt from any duty to make reasonable adjustments if both those questions are answered in the negative.
http://www.bailii.org/uk/cases/UKEAT/2009/0242_09_0911.html

Climate Change and Philosophical Beliefs
Grainger PLC v Nicholson EAT 3 November 2009
A belief in man-made climate change, and the alleged resulting moral imperatives, is capable, if genuinely held, of being a philosophical belief for the purpose of the 2003 Religion and Belief Regulations. The belief must be of a similar cogency or status to a religious belief.

The EAT offered guidelines on what will amount to a philosophical belief.
http://www.bailii.org/uk/cases/UKEAT/2009/0219_09_0311.html

Religious Belief Discrimination
Ladele v London Borough of Islington Court of Appeal 15 December 2009
The Court of Appeal agreed with the EAT that the Claimant was not subjected to unlawful discrimination, nor harassed contrary to the 2003 Regulations, when required to register civil partnerships even though she objected to officiating at such registrations on the grounds of her religious beliefs. Her conduct in refusing to officiate was the issue, not her beliefs.
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1357.html

Harassment Act Claims at Work
Veakins v Keir Islington Ltd Court of Appeal 2 December 2009
The application of the Protection from Harassment Act 1997 to workplace conduct remains problematic. This is a rare case of a claim succeeding. The primary focus is on whether the conduct is oppressive and unacceptable, albeit the court must keep in mind that it must be of an order which would sustain criminal liability. Here there was no dispute as to how the Claimant had been treated or that it had caused a depressive illness.

The Court made it clear that they did not expect that many workplace cases will give rise to liability under the Harassment Act. The Employment Tribunal will more fittingly provide the remedy for the great majority of cases of high-handed and discriminatory conduct.
http://www.bailii.org/ew/cases/EWCA/Civ/2009/1288.html

Sex Discrimination – IVF Treatment
Sahota v Home Office EAT 15 December 2009
This case raised the issue of whether IVF treatment should be treated as equivalent to pregnancy for the purposes of the Sex Discrimination Act such that a comparator need not be identified.
The view of the EAT was that there was protection only for the limited period between the follicular puncture (when the ova are retrieved from the ovary for fertilisation in vitro), and the subsequent transfer of the in vitro fertilised ova into the uterus. After that point, of course, the woman is pregnant. The EAT did not accept that there should be a period of protection covering any treatment leading up to the follicular puncture.
http://www.bailii.org/uk/cases/UKEAT/2009/0342_09_1512.html

Pregnancy Risk Assessments
O’Neill v Buckinghamshire County Council EAT 5 January 2010
Pregnant workers are not automatically entitled to a work assessment under Regulation 16 Management of Health and Safety at Work Regulations 1999 in the absence of evidence that the work involved a risk as to health and safety to the expectant mother.
However, an employer must provide the worker with comprehensive and relevant information on the identified risks to her health and safety.

It remains arguable that where such evidence exists, failure to carry out a risk assessment is unlawful sex discrimination.
http://www.bailii.org/uk/cases/UKEAT/2010/0020_09_0501.html

Annual Compensation Limits
These are altered with effect from 1st February 2010. Because the RPI has fallen, the maximum compensatory award drops from £66,200 to £65,300.
However, the uplifting of the limit on a week’s pay in October 2009 to £380 was ring fenced from any RPI reduction on this occasion so that figure remains the same.
http://www.opsi.gov.uk/si/si2009/uksi_20093274_en_1