Gordons Legal Employment Update – 8 December 2016

There have been a few interesting cases this week regarding the definition of ‘disability’, Employment Tribunal awards and vicarious liability.  The government has also revealed that it is consulting on reforms to the Employment Tribunal system and a revised version of the Equality Act 2010 (Gender Pay Gap Information) Regulations has been published.

Can temporary incapacity constitute disability if it is sufficiently long term?

Daouidi v Bootes Plus SL and ors, is a Spanish case that progressed to the Court of Justice of the European Union (ECJ). The case concerned whether a temporary incapacity of uncertain duration following a workplace accident could constitute disability if it is sufficiently long-term.

By way of background, the Claimant worked as a kitchen assistant and in October 2014, he slipped whilst at work dislocating his elbow.  Following the accident he informed the Respondent that he could not return to work immediately and in late November 2014, the Claimant was served with a notice of disciplinary dismissal allegedly on grounds of poor performance.

The Claimant brought claims of unfair dismissal and disability discrimination. The Spanish Social Court acknowledged that there was sufficient evidence to support the Claimant’s argument that the real reason for his dismissal was his temporary incapacity for work. It referred a question to the ECJ, asking whether the Claimant could be considered disabled, given the duration of his incapacity was unclear.

The ECJ found that provided the worker’s incapacity is ‘long-term’ in accordance the EQ Equal Treatment Framework Directive (No.2000/78), there was no reason why the dismissal of a worker because of a temporary incapacity of uncertain duration as a result of a workplace accident could not constitute direct discrimination on the grounds of disability. It is a question for the national court to determine on an objective assessment of all of the evidence whether or not the incapacity is sufficiently long-term for the definition of disability.

Comment: If a case was to arise in England/Wales based on the same facts, it would be down to the Employment Tribunal to determine whether the medical condition that led to the Claimant’s incapacity for work would be likely to last for at least 12 months, in accordance with para 2(1) of Schedule 1 of the Equality Act 2010.  However, in circumstances where an employer is considering dismissing an employee who has a condition that potentially amounts to being a disability on performance/ill-health grounds, it is always strongly advisable (regardless of the employee’s length of service) to obtain medical evidence to give an indication as to whether or not an employee is likely to be considered as being disabled.

Personal Injury Awards in the Employment Tribunal

In the case of Hampshire County Council v Wyatt, the Employment Appeal Tribunal (EAT) determined that it was possible for an Employment Tribunal to make an award for personal injury damages without having first received any expert medical evidence.

In this case, the Employment Tribunal awarded the Claimant damages for personal injury on the basis it found that the manner in which the Claimant’s suspension was communicated to her amounted to an act of discrimination and this either caused, or materially contributed to her depression.  The Respondent appealed against this decision on the basis that it did not consider that such an award could be made in the absence of medical evidence.

The EAT held that whilst it is always advisable for Claimants to obtain expert medical evidence and a failure to do so would give rise to the risk of no award or a lower award being given than perhaps may have been made if expert evidence had been obtained, there was no general legal principle which suggests that such an award is unable to be made in the absence of medical evidence.

Comment:  We are of the view that it would only be in the most unusual of cases where such an award is made without there being any medical evidence whatsoever.  Indeed, we note that in this case, the Tribunal relied upon a series of Occupational Health reports and witness evidence of the Claimant and her witness in reaching its conclusions.

Vicarious Liability

There was an interesting, if not rather sad, High Court decision this week concerning whether or not an employer would be vicariously liable for injuries caused by an employee after a work Christmas party had ended.

In Bellman v Northampton Recruitment, the Claimant and a number of his colleagues moved on to a hotel to continue drinking after the work Christmas party had ended.  At approximately 3am, the Claimant was assaulted by a director of the company and sustained a brain injury.  The Claimant sought to sue the Company rather than the director personally for his injuries.

When determining the issue of whether or not the company would be vicariously liable, the Court was asked to determine whether the director was “acting in the course of scope of his employment”.  The Judge held that as the damage had occurred in a private drinking session after the party that the company was not vicariously liable.  However, if it was the case that the damage had occurred at the party itself, that the company would have been vicariously liable.

Comment: As we are now firmly in the “silly season”, the above case serves as a useful reminder that in certain circumstances employers can be held liable for the actions of their employees at work events.

Consultation launched into reforming the Employment Tribunal system

Consultation on reforming the Employment Tribunal system has been launched by both the Department of Business, Energy and Industrial Strategy and the Ministry of Justice.  The consultation aims to seek the views from all users of the system on how the wider justice system reform principles should be applied in the Employment Tribunals and EAT. The Government desires that the reforms will be applied in a way that distinguishes the difference between the tribunal system, the Employment Tribunals and the EAT.

In early September the proposals for the reform of the wider court and tribunal system were published and to recap, the changes included:

• Digitising the whole claim process;
• Delegating a broad range of routine tasks from judges to caseworkers;
• Tailoring the composition of tribunal panels to the needs of the case; and
• Removing any unnecessary restrictions on how a particular type of case must be determined.

If the proposed reforms remain unedited the Employment Tribunals Act 1996 will require some amendments. Therefore, it is likely that the Employment Tribunal and EAT reforms will be among the last to be implemented.

With regard to the timescale for this consultation, the Government states that the review’s conclusions will be published ‘in due course’ and that ‘any adjustments to the current fee structure will be brought for consultation’.

Comment: We consider that a significant focus of the review will be in relation to the delegation of judicial functions to ensure the integrity of the judicial process is not undermined.

Revised Gender Pay Gap Reporting Regulations Published

In light of questions and concerns raised about the original version of the Equality Act 2010 (Gender Pay Gap Information) Regulations, the government has this week published a revised draft of the Regulations.  The changes include:

• The “snapshot date” for determining whether the employer meets the 250 employee threshold has been moved from 30 April to 5 April each year.  Therefore the first gender pay report for 2017 must be published by no later than 4 April 2018;
• The definition of “relevant employee” has been amended to “a person who is employed by the employer on the relevant snapshot date”.  The Explanatory Notes states that the definition of “employment” mirrors that which is set out in the Equality Act, which includes employees and workers;
• The new regulations provide an exemption for those workers where the employer does not have and it is not reasonably practicable for the employer to obtain, the relevant data;
• A method has been set out for calculating the gross hourly rate of pay for staff, which uses an employee’s normal hours of work for those staff who have regular hours and a 12-week average for those staff who do not work regular hours;
• With regard to bonus payments, only the proportion of any bonus payment that relates to the relevant pay period should be used when working out the median and mean gender pay gap;
• When calculating median and mean gender pay gaps and their pay quartiles, employers should base their calculations on “full pay relevant employees” (i.e. not those who are absent from work as a result of being on sick, annual, or family-related leave).

Comment:  In case you hadn’t realised, we are now almost in 2017………(!). If you have more than 250 employees have not started planning for the forthcoming Gender Pay Reporting Regulations, we strongly suggest that you do so.  We are aware from those clients who have begun preparing for the implementation of the Regulations, that collating the necessary data is a time-consuming and painstaking process.

If you require any further information on the above developments please do not hesitate to get in contact with a member of the Employment Team, on the following number 0113 227 0100.