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Archive for the ‘Discrimination Rights’ Category

Protecting disabled employee’s pay can be a reasonable adjustment

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The Employment Appeals Tribunal (“EAT”) has held that an Employment Tribunal was entitled to find that an employer was required, as a reasonable adjustment, to continue employing a disabled employee in a more junior role involving less physical activity, preserving his existing rate of pay on an indefinite basis. Whether it was reasonable for the employer to have to take that step was a separate question, to be determined in the particular circumstances.

Protecting disabled employee’s pay

Protecting disabled employee’s pay

In the case of G4S Cash Solutions (UK) Ltd v Powell, the EAT decided that if an employer proposes an adjustment which is incompatible with the terms of the employee’s contract, the employee is entitled to decline it: the adjustment will not be effective without agreement. In this case, it was clear that there had been a variation of the contract when the employee returned from sickness absence to a changed role.

Protecting a disabled employee’s pay when they are redeployed should not be discounted. In every case, the reasonableness of potential adjustments must be assessed on a case-by-case basis, taking account of the factors set out in the EHRC Code, including the costs of making the adjustment and the financial and other resources available to the employer.

In this case, the employer had paid Mr Powell at the higher rate of pay for about a year, and had led him to believe that the arrangement would be long-term. The Tribunal concluded that the employer was a company with substantial resources for whom the additional annual cost of employing Mr Powell would have been easily affordable. The employer’s evidence was that the main reason for not continuing to pay the higher pay was the likelihood of discontent from other employees. The EAT described this as an “unattractive reason”. This is a reminder that the impact (or anticipated impact) on other employees of an adjustment is not generally a factor that should be taken into account when determining reasonableness. However, wider implications on the organisation or the workforce as a whole may be considered.

Previous cases have held that it is for the employer to explore the possibility of reasonable adjustments, not for the employee to suggest them. Although in some circumstances employers will be expected to take the initiative in making adjustments in order to discharge the duty, this case clarifies that an adjustment which also amounts to a contractual change will not be effective without securing the employee’s agreement.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

September 19th, 2016 at 1:01 pm

Corporate Bodies are Protected from Discrimination

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Andrew Egan

Andrew Egan

In EAD Solicitors LLP and others v Abrams UKEAT/0054/15, the Employment Appeals Tribunal has held that a limited company which was a member of a Limited Liability Partnership could bring a claim alleging it was the victim of direct discrimination based on the age of its principal shareholder and director.

Facts

Mr Abrams was a member of EAD, a limited liability partnership (LLP). For tax reasons, as he approached retirement, he set up a limited company of which he was the sole director and principal shareholder. He withdrew from membership of the LLP and the limited company took his place. It took the profit share that Mr Abrams would have received as a member, in return for which it undertook to supply the services of an appropriate fee-earner to the LLP. Although it was expected that this would be Mr Abrams himself, there was no requirement that it should be him. He was not an employee or a worker of the company and neither did he have any contractual relationship with the LLP.

When Mr Abrams reached the age at which he would normally have retired from the LLP if he had remained a member, the LLP objected to his company remaining a member of the LLP, and to his continuing to supply his services to the LLP. Mr Abrams presented an age discrimination claim under the EqA 2010 naming himself as first claimant and the company as second claimant.

The EAT rejected the argument that only individuals are protected under the Equality Act 2010 (Equality Act 2010). The EqA 2010 prevents discrimination by a person against another person. “Person” is defined in the Interpretation Act 1978 as including a limited company unless the statute indicates a contrary intention. Case law has established that an individual may complain of discriminatory treatment based on the protected characteristic of another person, and the same logic extends to a company complaining of discriminatory treatment based on an individual’s protected characteristic.

Although this was an employment case, the decision will affect commercial and property law too, in relation to discrimination in the provision of goods, services or facilities, or the disposal of premises.

Direct discrimination occurs where, “because of a protected characteristic”, a person (A) treats another (B) less favourably than A treats or would treat others” (section 13(1), Equality Act 2010 (EqA 2010)).

An LLP (A) must not discriminate against a member (B), among other things, by expelling B or causing B any other detriment (section 45, EqA 2010). LLP members can include individuals or corporate bodies.

The EAT dismissed the appeal from the LLP and held that the claim by the company could proceed.

It held that the EqA 2010 does not protect individuals on the basis of their own protected characteristics, but identifies discrimination as treatment caused by a protected characteristic or related to it.

The EAT also referred to the Interpretation Act 1978 which states that a person includes “a body of persons corporate or unincorporate”. Therefore “person” in the EqA 2010 could include a limited company

A discriminator under the EqA 2010 must be a “person”, and it has long been recognised that the discriminator can be a corporation, so there was no reason why the “person” on the receiving end of the discrimination had to be an individual.

This is a very important development for discrimination law, not just in the field of employment, but in other fields too.

An individual who provides services through a personal service company should still be protected by the provisions on contract workers in section 41

The key impact of this case is likely to be in the commercial and property spheres, in relation to the provision of goods, services or facilities, or the disposal of premises (sections 29 and 33, EqA 2010. The case confirms that a company, LLP, charity, educational establishment, or other non-natural person may sue if it receives detrimental treatment based on the protected characteristics of individuals associated with it (whether they be its members, directors, employees, customers, pupils or otherwise).

This could include, for example, a lender’s refusal of a business loan to a limited company because of its owners’ ethnic origins, or a business’s refusal to provide goods or services to an educational establishment because its pupils are of a different ethnic origin or religion.

For further information contact Andrew Egan on 01635 521212 or andrew.egan@clmlaw.co.uk

Written by Andrew Egan

October 6th, 2015 at 4:25 pm