Dyslexia and
disability
The Employment Appeal
Tribunal (EAT) has recently confirmed that a
policeman who had been diagnosed with dyslexia was
disabled for the purposes of the Disability
Discrimination Act 1995
(DDA).
In Paterson v
Commissioner of Police of the Metropolis, Mr
Paterson discovered that he was dyslexic a number
of years after first becoming a police officer,
during which time he had achieved the rank of
chief inspector. He had no difficulty producing
complex and detailed reports, or with his
budgeting and financial duties. However, when
examining whether the selection process for
promotion to superintendent needed to be adjusted,
a medical expert recommended that Mr Paterson be
allowed 25% more time at each stage of the
procedure. The key issue in this case was whether
Mr Paterson was in fact disabled for the purposes
of the DDA (and therefore whether his employer was
obliged to make reasonable
adjustments).
Under the DDA, a
person has a disability if he or she has a
physical or mental impairment which has a
substantial and long-term adverse effect on his or
her ability to carry out normal day-to-day
activities. In this case, the tribunal concluded
that the degree of dyslexia was no more than
minor. Whilst it was acknowledged that there was a
substantial disadvantage in relation to carrying
out the promotion examination, this was not
considered to be a day-to-day activity (and
therefore Mr Paterson was not disabled within the
meaning of the DDA).
However, the EAT
overturned the tribunal's decision that Mr
Paterson was not disabled. It confirmed that when
looking at the meaning of substantial adverse
effect, the comparison is not with the population
at large. What is required is a comparison of the
difference between the way in which the individual
in fact carries out the activity in question and
how he would carry it out if not impaired.
Where it is not disputed
that the employee is suffering a substantial
disadvantage because of the effects of his
disability on the procedures adopted for selection
for promotion, the EAT confirmed that the only
proper inference is that those effects must
involve more than a trivial effect on the
employee's ability to undertake normal day-to-day
activities. The EAT also commented that it would
fundamentally undermine the protection which the
DDA is designed to provide were it
otherwise.
Victimisation - burden of
proof
With 'some degree of
hesitation and disquiet', the EAT has confirmed
that the 'reverse burden of proof' in
discrimination claims does not
apply to allegations of victimisation under the
Race Relations Act 1976
(RRA).
The statutory reverse
burden of proof provisions under discrimination
legislation provide that once a claimant has
proved facts from which a tribunal could conclude,
in the absence of an explanation, that the
respondent has committed an act of unlawful
discrimination, the burden shifts to the
respondent to prove that it did not commit that
act. If the respondent fails to do so, the
tribunal shall uphold the claimant's complaint.
Before the reverse burden
of proof provisions were introduced, a common law
test applied, which provided, in essence, that if
an employee is able to establish a 'prima facie'
case but the employer fails to provide an adequate
explanation, the tribunal may draw an inference
that the employee has been victimised (but is not
obliged to do
so).
In Oyarce v Cheshire
County Council, the EAT examined the
statutory provisions in the RRA, confirming that
whilst the reverse burden proof applies to direct
and indirect race discrimination and harassment,
it does not apply to claims of victimisation
brought under the RRA. In coming to this
conclusion, the EAT also considered the structure
of the Race Equality Directive (from which the
reverse burden of proof in the RRA
derives).
The EAT did note that the
reverse burden of proof applies equally in all
types of discrimination, however caused, whether
direct/indirect or by way of victimisation - no
distinction between the two exists. Whilst this
gave the EAT 'pause for thought', it confirmed
that, having looked at the statutory provisions in
the RRA and the Directive, there had been an
'apparently deliberate' attempt to distinguish
between discrimination on the grounds of
race and victimisation, in that the reverse burden
applies to the former but not to the
latter.
Not surprisingly, the
EAT's confirmation that the reverse burden of
proof now applies to all strands of discrimination
excluding victimisation under the RRA is likely to
confuse, rather than clarify, the position for
both parties to a claim brought under this
legislation. However, permission to appeal to the
Court of Appeal has been
granted.
Tribunal refuses to stay
age discrimination claim pending Heyday
challenge
Despite the fact that
the campaign group Heyday
has taken a case to the European Court of Justice
(ECJ) challenging the default retirement age of 65
contained in the Employment Equality (Age)
Regulations 2006 (covered in an earlier
update), an employment tribunal has recently
refused to stay a claim pending the outcome of
Heyday's case, according to recent reports.
In dismissing the
application to delay proceedings, the tribunal
noted the Advocate General's opinion in the
earlier case of Palacios de la Villa v
Cortefiel Servicios SA (also covered in a recent
update), which confirmed that the principle of
non-discrimination on the grounds of age under the
Equal Treatment Framework Directive does
not apply to national laws which
set retirement ages. Although the ECJ does not
have to follow the opinion of the Advocate
General, the tribunal chairman found that the
Advocate General's opinion was lengthy and well
argued and that the issues in both the Heyday and
Palacios cases were sufficiently close
for the outcome to be the same. It was therefore
considered that the prejudice to the employer of
the proceedings being delayed to await the outcome
of Heyday's case outweighed the prejudice to the
claimant of having her claim struck out, since it
only had a remote chance of success.
Employment Simplification
Bill
The Cabinet Office
has published the Government's draft legislative
programme for the
next session of Parliament.
The programme
contains 23 bills, including the Employment
Simplification Bill, which aims to produce
significant administrative savings for businesses
in relation to resolving workplace disputes, and
provide greater clarity for employers, trade
unions and employees about their responsibilities.
The main elements of the bill include:
DBERR - Holiday Ready
Reckoner
As noted in our earlier
update, the amount of holiday to which
full-time workers are entitled under the Working
Time Regulations 1998 is due to increase from 4
weeks to 4.8 weeks from 1 October 2007 and from
4.8 weeks to 5.6 weeks from 1 April 2009.
To assist with the
calculation of the increased holiday entitlement,
the DBERR (formerly the DTI) has published a 'holiday entitlement
ready reckoner' and some 'frequently asked
questions'.
European Commission -
communication on gender pay gap
The European
Commission has issued a communication to the
European Council, Parliament and other bodies on
the gender pay gap.
It notes that, across
the EU community, women still earn an average of
15% less than men and nothing indicates that this
gap is narrowing significantly. The aim of the
communication is to examine the causes of the pay
gap and suggest possible ways of reducing it. The
Commission states, however, that the efforts of
all interested parties (including the member
states and social partners) will need to be
harnessed in order to progress equality between
men and women in the workplace.
Cyber-bullying rife in UK
workplace
New research has
revealed that 'cyber-bullying' is becoming
increasingly common in the workplace, as reported
by Unite, now the
largest manufacturing union in the UK.
A fifth of
respondents have been bullied by email in their
current or previous jobs, and 6.2 per cent have
been bullied via a text message. Almost 9 per cent
believe that cyber-bullying is a problem in their
current organisation.
According to 13 per
cent of respondents, the increased use of
communications tools such as Blackberries also
makes cyber-bullying a problem outside working
hours.
EOC's final report -
Completing the Revolution
The Equal
Opportunities Commission (EOC) has published its
final report before being absorbed into the
Commission for Equality and Human Rights on 1
October, warning that gender equality is still
generations away.
'Completing the
Revolution' includes a gender equality index,
which identifies 22 indicators of sex
equality across five categories (including income,
family and power), and predicts how long it will
take to close the gap.
The publication of
the report also coincides with the launch of the
EOC's 'Gender Agenda'
campaign, which highlights the work left to do
to achieve gender equality.