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Latest Brief - Week Ending 20 January 2017

Can type 2 diabetes be a disability?

The EAT has decided that type 2 diabetes can amount to a disability. The Claimant in the case of Taylor v Ladbrokes Betting and Gaming appealed a decision taken at a Preliminary Hearing that he was not disabled. The EAT upheld the appeal, and held that the Tribunal has misconstrued the proper test for disability. As a progressive condition, type 2 diabetes would amount to a disability even if it did not have a substantial adverse effect on normal day-to-day activities for the employee at that time, as long as it was likely that it would result in such a condition.  In this case, the Claimant's diabetes was controlled by a combination of medication and lifestyle changes. The medical evidence provided concentrated on the effect of the diabetes in the past, rather than looking to the future prognosis. The relevant question was whether the condition was likely to result in an impairment to the particular employee concerned in the future. The Tribunal judge took the view that there was only a small possibility of the condition progressing, but the EAT held that this was incorrect.  It was not clear from the medical evidence in this case what the likely progression would be, and therefore the matter was remitted to the Tribunal to make a decision.  

Reliance on mobility clause in a redundancy situation

A recent case has come before the EAT involving two employees who had mobility clause in their contracts of employment.  The office at which they were employed closed, and the employer tried to exercise the mobility clause to require the employees to move to another office.  The employees refused, and were dismissed. 

The question arose regarding whether or not their dismissals were by reason of redundancy, or for alleged misconduct, on the basis that they had been dismissed for refusing to comply with a reasonable instruction under their contracts. The EAT found that the reason for the dismissals was in fact misconduct rather than redundancy.  However, the EAT upheld the Tribunal's decision that the dismissals were unfair.  The Tribunal found that in the circumstances, the employer had not been entitled to rely on the mobility clause, the requirement to move to another office had not been reasonable, and the employees had reasonable grounds on which to refuse this request.  

Wheelchair v buggy?

This week, the Supreme Court has given its decision in the case of Mr Paulley, a wheelchair user, who was unable to board a bus due to the fact that the wheelchair space was occupied by a sleeping child in a pushchair. The driver had asked the child's mother to vacate the space, but she had refused, and the driver took no further action.  The Supreme Court found that the bus driver's failure to take any further action was a breach of the duty to make reasonable adjustments under the Equality Act.  It was not enough to instruct drivers simply to request non-wheelchair users to vacate the space if it was required by a wheelchair user, and do nothing further if the request was rejected.  Instead, some further step to pressurise the non-wheelchair user to vacate the space should have been considered.  The duty to make reasonable adjustments meant that drivers must go as far as they feel reasonable in the circumstances to insist that the space is vacated.  It is worth noting that an employer generally has a much greater degree of control over employees than a service provider has over service users.  In light of this, there are differences in reality relation to what can reasonably be expected of an employer and a provider of public services as far as the duty to make reasonable adjustments is concerned.

Latest Brief - Week Ending 13 January 2017

What to expect in 2017..

With Brexit on the horizon and more and more litigation in relation to the 'gig' economy, 2017 looks like another busy year in employment law!  The uncertainty arising out of Brexit is likely to continue to dominate the employment law landscape, although it is hoped that we might get a bit more certainty about what the implications of this might be as the year progresses.  One of the key developments of the year will be gender pay gap reporting, which will be coming into force in April.  Although the first pay report is not due until 2018, employers will need to capture the data as at April 2017.  The government is currently carrying out a number of reviews looking at the changing nature of the workplace, which could potentially result in new legislation or guidance in relation to employment status, in light of recent cases and debate about zero hours workers and the gig economy.  And we are still awaiting the publication of the government's report in relation to Tribunal fees.  Although given how long we have already been waiting for this report, we may still be waiting for some time! 

Employment status again! 

In another case relating to the 'gig' economy, a Tribunal has found that a bicycle courier was a 'worker' of Citysprint Limited, the courier firm, despite the contractual documents describing her as a self-employed contractor.  The tribunal noted that, while the contractual words are 'key pieces in the jigsaw, the bar is low before the true situation can be explored'. The Claimant was expected to work when she said she would, was given directions while she was logged into the Respondent's system,  and was instructed to wear a uniform.  The Tribunal held that the reality of the Claimant's working conditions made it clear that she was integrated into the Respondent's business, and she was therefore not working for herself, but on the company's behalf.  The Claimant in this case therefore succeeded in her claim for 2 days' holiday pay.  

Relying on expired warnings in disciplinary proceedings

The EAT has upheld a decision that an employee was fairly dismissed in circumstances where the employer concluded that a disciplinary offence merited a final written warning, but nevertheless made the decision to dismiss the employee after considering his history of expired warnings.  Previous cases show that once an employer finds an employee guilty of gross misconduct, the employee's disciplinary history (including expired warnings) can be relied on in determining sanction.  In this case, it was highly relevant that the employer believed that there would be future conduct issues in light of the employee's previous disciplinary record.  The EAT considered that the fact that there had been previous misconduct in relation to which a final written warning had been given, and the fact that this warning had expired at the date of the later misconduct, were all objective circumstances relevant to the question of whether the employer acted reasonably or unreasonably.  Although this case is helpful in that it makes clear that employers can take into account previous expired warnings in certain circumstances, it is fairly fact specific.  Employers should therefore treat this case with caution, as there will frequently be circumstances in which it would not be found fair to rely on an expired warning.