Jane Fielding, Head of Employment, Labour & Equalities talks to Vivienne Reeve, Senior Associate about updates around discrimination cases, from disability through to rights of breastfeeding mothers.
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Jane Fielding: So Vivienne with the tribunal fees coming in and the reduction in tribunal claims, it still seems there is no shortage of decisions around discrimination issues to keep us busy. Are there some general areas that have been prevalent this year you want to talk about?
Vivienne Reeve: There have. I think there are sort of three main areas of interest I think, of practical use as well for people and the first has been some useful disability cases, some family friendly cases and also some issues about religion at work.
Jane: So on the disability ones, are they around reasonable adjustments or what are they focused on?
Vivienne: I think the first one of interest was actually going back to basics. It was looking at what normal day to day activities are for the purposes of the definition of disability under the Equality Act, and it was a case where the tribunal were looking at an individual who was a picker, he was working in a distribution centre picking things off the shelves, much like you would in lots of distribution centres and the preliminary question was whether he was disabled or not at all and the tribunal had taken quite a narrow view in looking at what he could do as part of his normal day to day life outside of work so whether he could go shopping, paint, whether he could clean the windows, take a flight and they thought that he was not because his back injury did not impede on any of that. But actually on appeal the appeal tribunal took a broader view and they looked at actually the context in which he is working so nowadays because of our culture there are thousands and thousands of people who do this stacking, picking action of taking things off shelves and so the guidance was that it was not the specific pick rates or the specifics of the employer's working practice it is actually the action or the repetitive action of lifting or moving things and, in that case, it meant that he was actually disabled. So I think that was just a good reminder not to get too bogged down in the detail of working practice but actually more generally what are you asking somebody do and can they do it or not.
Jane: And I suppose it also shows interpretation of the law in what day to day activities are sort of changing with social change.
Vivienne: Changing with social change and it's a good reminder actually that the wider UN convention definition of whether somebody can take part in normal society is really the thing to look out for.
Jane: So are there any other disability ones that are particularly relevant?
Vivienne: There was a case against a borough council and the tribunal looked at the notion of stress and it was a useful reminder that, whilst a lot of people these days unfortunately suffer from stress and in fact it is the number one cause of long term absence at the moment, just because somebody is stressed does not mean they have a mental impairment and in the context of the case the appeal tribunal gave some guidance which is that sometimes there are people who struggle to deal with decisions that go against them or normal relationship conflicts or people who just cannot move on from something that has happened and whilst they might suffer from stress you need to take a careful analysis of whether they are actually suffering from an impairment and that might mean getting some medical guidance, whether from occupational health or an independent expert before you make an assumption and I think just because stress comes up a lot, it was a useful reminder that just because somebody disagrees with something or cannot move past something, that does not mean that they are disabled.
Jane: But if their ability not to move on from something was from a personality disorder or because of a mental impairment then they could still be disabled?
Vivienne: Absolutely, but all the more reason to get medical guidance as to whether somebody has a condition, how that affects them, the prognosis etc. and then you can move forward with the benefit of expert views.
Jane: So on the religious and belief front, I think there have been some cases around that as well. One particularly controversial one in a school?
Vivienne: Yes there has. There was a lady who worked at a school. She was dismissed because the school found that they could not trust in her instincts and could not ensure that she could fulfil her safeguarding obligations because she had chosen to stay with her husband who was a headmaster of a local school who had been convicted of indecent behaviour with regards to children. She brought a claim for unfair dismissal but also indirect religious discrimination on the basis that because she had strong beliefs, she was an Anglican Christian, that placed an extra burden on her in terms of the moral decision as to whether she should stay or leave her husband. The tribunal agreed but on appeal actually it was discussed again and the Appeal Tribunal decided that, whilst anybody in that situation would have a very difficult moral decision to make, the fact that she fervently believed in the sanctity of marriage meant that she had an additional consideration and in that case the policy of dismissing in that situation was indirect discrimination and on the facts it was not justified.
Jane: Is it going to be appealed?
Vivienne: Certainly one to look out for.
Jane: And finally there has been a lot of publicity recently around the fact that women on maternity leave or women who are pregnant at work or breastfeeding are still facing an enormous amount of discrimination. I think there has been a case involving an airline?
Vivienne: There has. Two female cabin crew brought a claim because they came back from maternity leave and they wanted to be able to continue to breastfeed and this was not initially accommodated. Essentially these ladies were cabin crew so they were on an eight hour roster and that caused difficulties because they were not able to express on board the plane, there was not anywhere appropriate and because they could not express they were then at increased risk of feeling very uncomfortable but also developing Mastitis, so they asked for some adjustments to be made to their rota. These were not allowed on the basis that the airline needed to ensure that the airline schedule was kept to and also that there was no knock-on effect with lateness and fines and all that sort of thing, and it is a very regulated industry. Unfortunately, the evidence just did not bear that out. The tribunal gave some clear guidance about breastfeeding at work and found that actually the airline should have done more to accommodate these ladies because the situation they found themselves in in the airline refusing their request for adjustments was that they either had to do the flights in which case they were going to be very uncomfortable, and I think anybody who has any experience would join me in wincing at that and their increased likelihood of developing Mastitis, or the alternative was that they would have a knock-on effect on their pay because they would not be able to enjoy the normal pay and entitlements that they would get. The evidence that the airline put forward about the legitimate aims did not stack up on the day and the tribunal took the opportunity to give some clear guidance. The comment made in evidence that breastfeeding was a lifestyle choice went down particularly badly. A good opportunity to just set out that employers are expected to accommodate women coming back from maternity leave in breastfeeding, and it was just a reminder I think that if you have got shift patterns you just need to be thinking early about how you can accommodate them. Although it is only a tribunal case, and therefore not binding, I think it is a good reminder and some good principles laid down very clearly to everybody that breastfeeding needs to be accommodated.