Prior to the case of Sharon Coleman v Attridge Law LLP (2008) C-303/06 (“Coleman case”), UK law did not prohibit associative discrimination against an employee on the grounds of disability. However, since this case, UK law now has to be read in line with the EU Equal Treatment Framework Directive (“The Directive”).
In the Coleman case, the London South Employment Tribunal (“LSE Tribunal”) referred the matter to the Court of Justice of European Communities (“ECJ”) who determined that the prohibition of direct discrimination on the grounds of disability is not limited only to those who are personally disabled. They confirmed that as a result of the Directive, it is also extended to those who are treated less favourably (than another employee has/would be treated in a comparable situation) as a result of them being the carer of their child who is disabled. The case was transferred back to the LSE Tribunal who determined, in light of the ECJ ruling that, despite its narrow wording, the Disability Discrimination Act 1995 definition of direct discrimination and harassment needed to be read in line with the Directive.
Similar issues as those in the Coleman case have arisen again recently in the case of Truman v Bibby Distribution Limited ET/2404176/2014 (“Truman case”).
1. The employee concerned was a Father with a disabled daughter who had cystic fibrosis.
2. His wife was the primary carer for their daughter, but she was about to start her own business, so his caring responsibilities were likely to increase. He mentioned this to a colleague.
3. The employee had been employed for nearly a year and had received good appraisals.
4. On the day that the employee accrued one year’s service, he was asked to attend a meeting at which he was dismissed with immediate effect and with payment in lieu of notice.
5. The reasons that he was given for his dismissal were that his “heart was not in the job” and that his primary customer was dissatisfied with him.
6. He did not challenge the dismissal internally as he felt that the decision was predetermined.
7. The employee took the employer to the Employment Tribunal (“ET”)
The ET considered the case and felt that the employee had proved the facts from which they could conclude, in the absence of a satisfactory explanation from the employer, that the treatment was on the grounds of associative disability discrimination. The burden of proof therefore shifted to the employer who was unable to show adequately that the dismissal was not on those grounds. Additionally, they were unable to evidence that the employee’s performance had so significantly deteriorated that it was beyond repair. In particular, the employer had not put any performance improvement process (“PIP”) in place, and they were unable to show that there had been any indication from the primary customer or from management that there were issues with the employee’s performance.
Additionally, the ET was suspicious of the timing of the dismissal as it took place just before the employee became entitled to unpaid ordinary parental leave. On that basis, the ET found the employer to have committed direct associative disability discrimination and a separate remedy hearing was scheduled.
Key points and implications
1. As a result of this case, employers looking to dismiss someone in these employees’ circumstances, will need to be extremely cautious about ensuring that the reasons for the dismissal are fair and are made very clear to the employee.
2. Additionally, when it is the employee’s performance that is an issue, employers should ensure that they carry out the necessary steps such as putting a PIP in place. It is only after these steps have failed that they should consider dismissing an employee.
3. Employers will need to carefully consider any requests by such employees for flexible working if they wish to protect themselves.
Sick leave, annual leave and voluntary overtime
Plumb v Duncan Print Group
An appeal brought by an employee against the decision of the ET, that he was not entitled to payment in lieu of annual leave which he had not taken during his sick leave, was allowed in part, in the case of Plumb v Duncan Print Group UK EAT/ 0071/15.
The facts of the case were that the employee had been off sick for four years between 2010 and 2014 and in three of those four years, he had not taken any annual leave. The employee was dismissed in 2014 and the case went to the ET who had to consider;
1. Whether an employee on sick leave is required to establish that they were unable to take their annual leave due to their medical condition, or whether it is sufficient that they chose not to take their annual leave.
ii. Whether there was a limitation period in place which prevented an employee taking their accrued annual leave in later years.
The ET determined that i) was the key consideration and as the employee had just chosen not to take his annual leave, rather than being unable to due to his disability, they dismissed his claim. The ET also stated that an employee can only carry forward leave 18 months from the end of a leave year.
The employee appealed the decision to the Employment Appeal Tribunal (“EAT”). The EAT stated that in line with Article 7 of the Working Time Directive (“The Directive”), an employee on sick leave, who is entitled to take annual leave during that sick leave (by virtue of their contract/ national legislation), has a choice whether or not to take this leave during the period of sick leave. They also stated that if the employee chooses not to take the annual leave, they are entitled to take it at a later date. Therefore, Regulation 13(9) of the Working Time Regulations 1998, which states that annual leave should be taken in the year in which it is due, should be interpreted in light of the Directive. However, the EAT stated that it does not follow that there is an unlimited right under EU law for employees to carry over annual leave, but they are instead required to take it within 18 months of the end of the leave year in which the leave was accrued.
Therefore, the employee in the Plumb case was only entitled to compensation for the latter years’ annual leave that he did not take within the 18 month period post those leave years.
This decision has clear implications for both employees and employers, so it is not surprising that the parties have been given leave to appeal to the Court of Appeal. However, it appears that the decision strikes a fair balance between affording employees in such circumstances, the protection from losing their annual leave entirely, whilst also not allowing the entitlement to take the annual leave open-ended. Additionally, as the purposes of sick leave and annual leave are clearly very different, i.e. recovery versus enjoyment, it would have been nonsensical (although easier for employers) to insist that an employee who is off sick, who does not wish to take their annual leave, is forced to do so.
In order to avoid the situation that arose in the Plumb case, Employers will need to keep an accurate record and actively monitor their employees’ annual leave entitlements/remaining days, the dates of the employees’ sick leave and when the 18-month period begins and ends.
Patterson v Castlereagh Borough Council.
A recent decision which also has implications for UK employers, despite not being binding in England, Wales or Scotland, is that of Patterson v Castlereagh Borough Council NITT/1793/13 (“Patterson case”). This case concerned the issue of including voluntary overtime in annual leave payments.
In the previous case of Bear Scotland Ltd and others v Fulton and others; Hertel (UK) Ltd v Woods and others; Amec Group Ltd v Law and others, the EAT held that non-guaranteed overtime would be included in holiday pay, as the employee was still expected to carry out the tasks under their contracts, but it did not address the issue of non-mandatory overtime. Therefore, when this point arose in the Patterson case, the Tribunal needed to consider whether overtime that is not mandatory, should be included.
In the Patterson case, the employee’s contract was silent on the issue of overtime. The employer was not required to give him overtime (as was the case in the Bear case) but also the employee was not required to undertake any overtime, even when it was offered to him. Therefore, the overtime was purely voluntary and as a result, the Northern Ireland Tribunal dismissed his claim for unlawful deductions from wages.
On appeal to the Northern Ireland Court of Appeal, the Court held that Tribunal had erred in failing to consider the specific details of the employer’s overtime arrangements with the employer. Additionally, the employer conceded that there was no reason in principle that prevents voluntary overtime being included in the calculation, but that each case needed to be considered on its own facts. The Court agreed that in situations where such overtime was a normal feature of an employee’s work, so that it became an “appropriately permanent feature” it could and should be included.
The Appeal was allowed and the case returned to the Tribunal for a re-hearing.
Whilst this case has provided some clarity to a previously unclear area, it is evident that disputes will continue to arise. In particular, in situations where the overtime is irregular or less frequent, it will need to be determined whether this amounts to being an “appropriately permanent feature”. As this area of law continues to regularly evolve, it will be interesting to see what further principles will be developed by future cases.
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