Disability Discrimination

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EAT upholds finding of direct discrimination because of perceived disability

In Chief Constable of Norfolk v Coffey the EAT has upheld the decision of an employment tribunal that a police officer, who was turned down for a transfer to the Norfolk Constabulary because her hearing loss was marginally below the medical standard for police recruitment, had suffered direct discrimination because of a perceived disability. The Constabulary’s reason for refusing the transfer was the concern that the claimant would end up on restricted duties. This indicated that it perceived her to have a progressive condition which, by virtue of paragraph 8 of Schedule 1 to the Equality Act 2010, met the statutory definition of disability.

In 2011 C applied to the Wiltshire Constabulary to become a police constable. She attended a medical, at which it was discovered that she suffers from bilateral mild sensori-neural hearing loss with tinnitus. Although C’s hearing loss was marginally outside the range set down by the Home Office for police recruitment, the Wiltshire Constabulary arranged a practical functionality test which C duly passed before going on to work on front-line duties. In 2013 C applied to transfer to the Norfolk Constabulary. C attended a pre-employment health assessment, where the medical adviser noted that her hearing was ‘just outside the standards for recruitment strictly speaking’ but that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. He recommended that C undergo an ‘at work’ test, but this recommendation was not carried through by the Assistant Chief Inspector (ACI) who dealt with the application. Instead, the ACI declined C’s request to transfer on the basis that her hearing was below the acceptable and recognised standard, and that it would not be appropriate to step outside that standard given the risk of increasing the pool of officers on restricted duties.

C brought an employment tribunal claim for direct discrimination. It was not alleged that she actually had a disability; her case was that her hearing loss did not have, and was not likely to have, a substantial adverse effect on her ability to carry out day-to-day activities, including working activities. Instead, it was argued that she had been treated less favourably because she was perceived to have a disability, in the form of a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities. The tribunal considered that the only way to read the ACI’s comments about the risk of C ending up on restricted duties was that she perceived that C had a potential or actual disability which could lead to the Constabulary having to make adjustments to C’s role as a front-line police officer. Since this perception was the reason for refusing C’s transfer, the tribunal upheld the discrimination claim.

On appeal to the EAT, it was argued that the tribunal had erred both in respect of its finding that the ACI perceived C to be disabled and its finding that C had been treated less favourably because of that perception. On the former point, the EAT stressed that the question of whether a putative discriminator A perceives B to be disabled will not depend on whether A perceives B to be disabled as a matter of law. It will depend on whether A perceives B to have an impairment with the features which are set out in the legislation. Paragraph 8 of Schedule 1 to the EqA makes special provision in respect of progressive conditions. Where a person has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future. Although the ACI protested that she did not consider C disabled with the meaning of the EqA, her knowledge of the law was incomplete and did not include Paragraph 8 of Schedule 1. The reference to the risk of C being on restricted duties could only be read as the ACI perceiving that C had a progressive condition which could worsen. Thus, the tribunal had been entitled to find that she perceived her to be disabled.

Turning to whether the tribunal had been correct to find that there had been direct discrimination, the EAT accepted that a genuine difference in abilities will be a material difference between claimant and comparator. However, it saw no warrant for an employer’s flawed belief in a lack of ability to be a material difference. The tribunal was entitled to conclude that a person with the same abilities as C, whose condition the employer did not perceive to be likely to deteriorate so that he or she would require restricted duties, would not have been treated as C was. C had performed an active policing role in Wiltshire; she had been accepted at the interview stage; her rejection followed when the ACI ignored advice to rely on a practical assessment of C because, as the tribunal put it, she believed the C would become a liability to the force. The tribunal did not err in law in concluding that she had been subjected to direct discrimination.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0260_16_1912.html

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Multiple choice test subjected job applicant with Asperger’s to indirect disability discrimination

Multiple choice test subjected job applicant with Asperger’s to indirect disability discrimination

In Government Legal Service v Brookes, the EAT has upheld the decision of an employment tribunal that, in requiring a job applicant with Asperger syndrome to sit a multiple choice test at the first stage of its recruitment process, the GLS subjected her to indirect disability discrimination and discrimination because of something arising in consequence of her disability. The Appeal Tribunal also upheld the finding that, by refusing her request to provide answers to the test in narrative form rather than choosing from multiple options, the GLS failed in its duty to make reasonable adjustments.

The GLS recruits around 35 trainee solicitors each year and receives thousands of applications for these posts. As the first stage in recruitment, all applicants are required to sit an online ‘situational judgement test’ (SJT). This poses multiple choice questions as a means of testing candidates’ ability to make effective decisions. B, a law graduate with Asperger syndrome, contacted the GLS ahead of the 2015 recruitment round and requested adjustments to the SJT by being allowed to submit her answers to the questions in a short narrative form. She was told that an alternative test format was not available but that time allowances were, as well as a guaranteed interview scheme for those who passed the SJT and two subsequent tests. B took the SJT and received a score of 12 out of 22. The pass mark was set at 14, with the result that her application went no further. She subsequently brought claims in the employment tribunal of indirect disability discrimination under S.19 of the Equality Act 2010, discrimination because of something arising in consequence of her disability under S.15 and a failure to comply with the duty to make reasonable adjustments in S.20.

The tribunal hearing B’s claims found that the GLS had applied a provision, criterion or practice (PCP) of requiring all applicants in the trainee recruitment scheme to take and pass the online SJT. Having heard expert medical evidence, it concluded that the PCP generally placed people who had Asperger syndrome at a particular disadvantage compared with those who did not have it. It found that B was put at that disadvantage since her Asperger’s results in a lack of social imagination and causes difficulties in imaginative and counterfactual reasoning in hypothetical scenarios, and no alternative explanation as to why she failed the SJT was advanced by the GLS. The PCP pursued the legitimate aim of testing a fundamental competency required of GLS trainees, but the means of achieving that aim were not proportionate because there was the less discriminatory alternative of the adjustments proposed by B. The tribunal considered these adjustments to be reasonable, so the claims under S.19 and S.20 were both upheld. The claim under S.15 also succeeded: the requirement to take the SJT in its unaltered form amounted to unfavourable treatment; this could not be justified as a proportionate means of achieving a legitimate aim for the reasons found in respect of indirect discrimination. 

On appeal, the tribunal’s finding that the GLS had applied a PCP which placed people with Asperger’s at a disadvantage was not challenged, but the GLS disputed that B had experienced the same disadvantage. However, the EAT held that the tribunal’s reasoning was beyond reproach: ‘The tribunal was presented with what appeared to be a capable young woman who, with the benefit of adjustments, had obtained a law degree and had come close to reaching the required mark of 14 in the SJT, but had not quite managed it.  The tribunal was right to ask itself why, and was entitled to find that a likely explanation could be found in the fact that she had Asperger’s, and the additional difficulty that would place her under due to the multiple choice format of the SJT’. The EAT further upheld the tribunal’s reasoning in respect of proportionality under Ss.15 and 19 and reasonableness under S.20. In particular, the tribunal had been entitled to reject the GLS’s submission that this was a case where the method of testing and the competency itself were inseparable and effectively the same thing. The decision-making powers of the small number of candidates with Asperger’s could properly have been measured by requiring them to answer the SJT in narrative format.

Link to transcript: 

http://employmentappeals.decisions.tribunals.gov.uk//Public/Upload/16_0302fhwwATRN.doc

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Court of Appeal delivers a key judgement on employment status

The Court of Appeal has delivered an important decision on employment status holding that the plumbers engaged by Pimlico Plumbers were engaged as workers not self employed contractors.

In Pimlico Plumbers Ltd and anor v Smith, the Court of Appeal has upheld the decision of an employment tribunal that a plumber who was self-employed for tax purposes was nevertheless a ‘worker’ within the meaning of S.230(3)(b) of the Employment Rights Act 1996 and the Working Time Regulations 1998 SI 1998/1833 and an ‘employee’ under the extended definition of that term in S.83(2) of the Equality Act 2010.

S was a plumber who carried out work solely for PP Ltd between 25 August 2005 and 28 April 2011. He had signed an agreement that his work would be governed by terms and conditions set out in PP Ltd’s Manual, which included stipulations as to working hours, uniform and appearance; restricted the ability of S to work for himself or other companies; obliged S to use a PP Ltd van for his work; and provided that S could only swap jobs with other PP Ltd operatives. During this period, S filed tax returns on the basis that he was self-employed. He was registered for VAT and submitted regular VAT invoices to PP Ltd. In January 2011, S had a heart attack and PP Ltd subsequently terminated its arrangement with him on 3 May 2011, following which he brought claims in the employment tribunal alleging unfair dismissal, wrongful dismissal, entitlement to pay during the period of a medical suspension and failure to provide particulars of employment. These claims all depended on S being an employee within the meaning of S.230(3)(a) ERA – i.e. employed under a contract of service. At a pre-hearing review, an employment judge held that S was not employed under such a contract, and therefore concluded that the tribunal had no jurisdiction to hear these claims.

However, S had additionally made claims for unpaid holiday pay and unlawful deductions from wages. For these purposes he did not need to show that he was an employee, merely that he was a ‘worker’ within the meaning of S.230(3)(b) ERA and Reg 2 WTR – i.e. he was employed under a contract ‘whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual’. He also claimed against both PP Ltd and its owner, M, for direct disability discrimination, discrimination arising from disability and failure to make reasonable adjustments. For these purposes, he needed to be an employee within the extended definition in S.83(2) EqA, which includes those employed under ‘a contract personally to do work’.

The employment judge held that S was a worker and an employee in the extended sense. The main purpose of the agreement signed in 2005, and a subsequent agreement containing updated terms which S signed in 2009, was for S to personally provide work for PP Ltd. The Manual obliged him to work 40 hours per week (M’s evidence was that the minimum week in practice was 36 hours per week), and although there was some flexibility, he was required to agree the hours he would work with PP Ltd.  There was not an unfettered right to substitute at will: there was no such right given to S by the contractual documents and no evidential basis for such a practice. Even though in practice engineers with PP Ltd swapped jobs around between each other, and also used each other to provide additional help where more than one person was required for a job or to do a job more quickly, and there was evidence that external contractors were sometimes required to assist a job due to the need for further assistance or to conduct specialist work, the fact was that S was under an obligation to provide work personally for a minimum number of hours per week or on the days agreed with PP Ltd. S had a degree of autonomy in relation to the estimates and work done, but PP Ltd exercised very tight control in most other respects. These factors led the judge to conclude that PP Ltd could not be considered to be a client or customer of S’s business.

The EAT upheld the employment judge’s decision, leading PP Ltd to appeal further to the Court of Appeal, where the Master of the Rolls (Sir Terence Etherton) gave the lead judgment. He began by observing that ‘the case puts a spotlight on a business model under which operatives are intended to appear to clients of the business as working for the business, but at the same time the business itself seeks to maintain that, as between itself and its operatives, there is a legal relationship of client or customer and independent contractor rather than employer and employee or worker’. Citing the judgment of Lady Hale in the Supreme Court in Clyde and Co LLP and anor v Bates van Winklehof (Brief 1000), he stressed that in the context of S.230(3)(b) ERA, Reg 2 WTR and S.83(2) EqA, ‘a distinction is to be drawn between (1) persons employed under a contract of service; (2) persons who are self-employed, carrying on a profession or a business undertaking on their own account, and who enter into contracts with clients or customers to provide work or services for them; and (3) persons who are self-employed and provide their services as part of a profession or business undertaking carried on by someone else’. The question posed by the appeal was whether the employment judge was correct to hold that S fell in category (3) rather than category (2).

In the Master of the Rolls’ view, the employment judge had been correct to conclude that S was under an obligation to provide his services personally. Unlike earlier decisions of the EAT and Court of Appeal in which it had been held that an express right of substitution or delegation was incompatible with an obligation of personal performance, the facts here indicated that there was no such express right. Nor was there any scope for the Court to imply such a right. Furthermore, having found that S was obliged under the terms of his agreements with PP Ltd to do a minimum number of hours per week, the employment judge concluded, and was entitled to conclude, that the degree of control exercised by PP Ltd over S was also inconsistent with PP Ltd being a customer or client of a business run by S. In particular, the judge was entitled and right to place weight on the onerous restrictive covenants in the agreement, precluding S from working as a plumber in any part of Greater London for three months after termination.

 

http://www.bailii.org/ew/cases/EWCA/Civ/2017/51.html

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