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A B C D E F G H I J K L M N O P R S T V W Y

Employment

Equality is not just about women - The Government’s response to the Women & Equalities Committee First Report “Fathers and the Workplace”
Monday 18th June 2018

The Women & Equalities Committee’s (the “Committee”) first report of 2018 was published on 20 March 2018.  The report highlighted seven areas that the committee felt the Government needed to undertake more consideration and valuation of, especially around increasing rights for self-employed parents in certain areas for example but not limited to antenatal appointments, paternity leave pay and shared parental leave pay.

On 14 June 2018, the Government provided its response to the Committee’s report which has been highlighted by Maria Miller as an “a missed opportunity” by the Government to “really make some headway in this area”.  Quite frankly I would agree.

One aspect the Committee’s report highlighted that they wanted the Government to consider antenatal appointments for fathers in more detail, effectively they stated that fathers who are employed should be entitled to paid time off to attend antenatal appointments as a day 1 right with agency worker fathers being entitled to unpaid time off to attend antenatal appointment (again as a day 1 right), and to pay time off to attend antenatal appointments once they have been with the same company for 12 weeks. The Government’s response was that they would “like as many fathers and partners as possible to attend antenatal appointments” but yet concluded that the current statutory provision strikes the right balance between allowing fathers time off for antenatal appointments and employers the need to balance all other annual leave requirements in the context of running a business.  This seems a strange approach to me, as it seem the Government are suggesting that short term absence costs to businesses are more important than the right to a family life?

One of the interesting areas in terms of the response from the Government, was around paternity leave and pay where the Committee has suggested that fathers who are employees should be eligible for 2 weeks paternity leave as a day 1 right (similar to maternity leave) and that fathers who are agency workers should be eligible for paternity pay with the same eligibility requirements as agency worker mothers have for maternity pay. The Government’s response on this point focuses again on the statutory position, concluding that in their view fair the current position is fair and reasonable and that the reason that mothers have a minimum of 2 weeks maternity leave is to physically recover from childbirth and they do not think that this time is also required for the father. This begs the question as to how a mother can fully recover after childbirth if her partner is expected to return to work immediately?

Another area of consideration put forward by the Committee was shared parental leave and pay where the Committee recommended that as part of a review of shared parental leave, the Government should undertake an analysis of the costs and benefits of an alternative policy of 12 weeks paternity leave and pay to replace shared parental leave. The Government’s response to this point was that although an evaluation of shared parental leave and pay has started, it felt that the laws established in this area i.e. shared parental leave were too early in transition to have a full understanding of its impact. In my view this is quite a weak approach from the Government, in my experience it is very rare in practical terms for fathers of newly born children to exercise as a family their shared parental leave entitlements on the basis that knowledge of this leave is fairly low, the practical steps that the mother and the father have to take to work out and/or consider whether they are eligible for this leave are convoluted and complex and most relationships in terms of financial input centre around the income of the father.

For the Government to simply sign off their response around changing the culture of fathers in the workplace by thanking the Committee for raising the profile of their experiences of fathers and that they will monitor the results of the planned 2018 maternity and paternity rights survey carefully is simply not enough.  It seems to me like the Government are giving lip service to the strong views of equality for all from the general public and experts.

If you would like to find out more on the topic, please contact Laura Pointon or Sue McKenzie


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World Cup 2018 - Are employers ready for kick off?
Thursday 14th June 2018

With the World Cup starting in Russia today employers should be thinking how the event might impact their organisation.

Although the event is taking place outside of the UK, it is still likely to cause a shift in behaviour amongst the UK workforce with an increase in requests for annual leave, sickness absence and website use during working hours.

Instead of giving employees a straight red card, employers might see the World Cup as a way to maximise engagement. Providing greater flexibility, improved communication and further support to employees can be a means of curbing absenteeism and managing productivity during an event like the World Cup.

With this in mind, employers should have a set of simple workplace agreements and rules in place which cover the following:  

Annual Leave

While there is no obligation to give employees time off for any reason associated with the World Cup, a blanket ban is likely to be counter-productive and damaging for employee relations. Therefore, employers can look at being a little more flexible when allowing employees leave during the event. However, employees should also remember that it may not always be possible to book leave off. The key here is for both parties to come to an agreement and for planning to be in place to ensure that the organisation has sufficient cover in place at times when holidays are likely to be requested.

If employees are allowed flexibility or additional time off, an employer needs to ensure that it is not limited to England matches and supporters, but also applies to supporters of other nationalities which may be involved.

Sickness Absence

With the time zone differences, some World Cup matches kick off at 1pm and 4pm UK time- during many companies’ “normal” working hours. There is therefore a chance of employees calling in sick or going home sick, or turning up for work/ coming back from lunch worse for wear.

An employer should make it clear at the outset that they will be monitoring absences and that any unauthorised absences could result in formal proceedings. Being under the influence of alcohol or drugs while at work presents serious health and safety issues and should be dealt with in the normal way, regardless of the reason.

However, again, careful planning can help avoid absenteeism becoming a significant issue and there is no reason why an employer cannot agree a one-off variation to shift patterns with individuals or groups of employees if it allows employees to enjoy evening matches without affecting operational needs.

Use of social networking sites and websites

During the World Cup, there may be an increase in the use of social media sites such as Facebook and Twitter, as well as websites covering the event. It is vital that employers have a clear policy on web use and that it is clearly communicated to all employees. If it is allowed at break and lunch times then that is fine but it should be made clear that it is not acceptable at times which would interfere with normal work. If a company is monitoring an employee’s internet usage, then legally, they should make it clear that it is happening to all employees.

If you would like to find out more on the topic, please contact Joseph Shelston or a member of our Employment team

 


 

 


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Top tips for employers on engaging volunteers
Thursday 7th June 2018

Volunteering is a useful tool that can provide charities and other third sector organisations with assistance whilst allowing an individual the opportunity to give something back to the community. Issues arise, however, when the relationship between the individual and the organisation is not correctly defined. The risk being that the volunteer is found to be either an employee or a worker rather than a volunteer and has the benefits of rights with the organisation having increased obligations.

Volunteers’ Week seems like a good time to consider the issues that organisations need to be alive to when dealing with engaging volunteers.

To ensure that a volunteer is not construed to be an employee, we have some top tips:

  1. Consider having a written volunteer agreement in place. Whilst not compulsory it can help to explain the arrangement. Use flexible language such as, “we hope” or “we would prefer” so there is no actual obligation on the volunteers. It is also advisable to include an express term in the agreement that the parties do not intend to create an employment relationship. Be aware, however, that should issues arise a tribunal or court would also look at “the situation on the ground”.
  2. Don’t make payments that could be viewed as wages. Volunteers can be reimbursed for reasonable expenses however they should be ones that have actually been incurred and should not be paid during times of absence, for example, if the individual is on holiday, as this could be deemed to be wages.
  3. Volunteers should not receive any benefit in kind other than reasonable subsistence or accommodation (if required). Any benefits could be construed as the individual being treated the same as an employee.
  4. Differentiate between paid staff and volunteers. This could be as simple as paid staff having set shifts and the volunteers having the ability to pick as and when they work.

As volunteers do not have employment rights, they do not have the right to claim for discrimination (as things stand), unfair dismissal or any other employment related issues. However, volunteers must still be consistently treated fairly and with respect. You should still deal with any volunteer complaints in a formal manner (ideally following separate volunteer- specific policies to limit the risk of the volunteer being found to be an employee or worker).

Don’t forget either that you must comply with your data protection and health and safety obligations in respect of any volunteers.

If you use or are considering using volunteers and want advice on employment law aspects of this then please contact a member of the Brabners employment team.  


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Risks around stress in the workplace
Monday 21st May 2018

As you may be aware, the focus of this year’s Mental Health Awareness Week was stress.

According to research by the charity Mind from 2014 over 56% of those surveyed revealed that they found work very or fairly stressful. That is significantly higher than those reported in relation debt/ financial problems (38%), health (29%) or relationships (20%). This may come as no surprise to some, as we spend such a significant part of our lives at work and it can impact on many aspects of our lives.

The more recent HSE Work-related Stress, Depression or Anxiety Statistics in Great Britain 2017 defines work- related stress as “a harmful reaction that people have to undue pressures and demands placed on them at work”. The same statistics (which are based upon a Labour Force Survey) reveal that in 2016/17 the total number of cases of work related stress, depression or anxiety was 526,000 and that 12.5 million working days were lost due to work-related stress, depression or anxiety.

In its 2014 report, Mind also revealed that 95% of those surveyed who had taken time off because of stress had actually put down another reason, for example upset stomach or headache. This shows that people don’t feel comfortable telling their employer that they suffer from stress and how it impacts on them. This situation is supported by figures from a recent report by Business in the Community, The Mental Health at Work Report 2017 in which only 13% of employees feel they could disclose their mental health condition to their line manager and worryingly 15% of employees that had disclosed a mental health issue faced disciplinary procedures, demotion or dismissal.

If work is the cause of such levels of stress it’s highly likely that we will see an increase in the number of stress- related claims being brought.  Let’s briefly consider the types of claims that may be brought and what employers can do to reduce the risks of being on the receiving end of a successful claim.

Is stress a disability?

Stress can amount to a disability for the purposes of the Equality Act 2010 (“the Act”) provided it meets the definition of disability contained in section 6 and Schedule 1 of the Act. Many of you will be familiar with the section 6, but by way of refresher:

A person (P) has a disability if-

  1. P has a physical or mental impairment, and
  2. the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.”

Stress impacts on individuals in different ways so determining whether an employee has a disability by reason of stress will necessarily depend upon the facts of each case and will involve an examination of the impact of their stress on the individual and whether it fulfils the above definition. The importance of whether an employee is disabled goes to whether an employee can bring a disability discrimination claim which has no cap on compensation and the employee can also claim for injury to feelings.

Are there any other claims that a stressed employee could bring?

Under common law an employer has a duty to take reasonable care for safety of employees and a duty to take reasonable care for the provision of safe place of work and safe system of work. An employer also has duties of care under legislation. Under the Health and Safety at Work Act 1974 an employer has a general duty to ensure as far as reasonably practicable the health, safety and welfare at work of its employees. Under the Management of Health and Safety at Work Regulations 1999 an employer has duties in relation to risk assessments and in relation to the risks identified by such a risk assessment it must apply “the principles of prevention” and provide information to employees about the identified risks.

If an employer breaches any of these duties there is a risk that an employee could bring a personal injury claim. They would need to establish that the employer has breached a duty of care owed to the employee; that this breach caused the employee injury and that an injury of that type, as result of the breach was reasonably foreseeable.

Employees suffering from work- related stress may also be able to bring claims for breach of the Working Time Regulations 1998, for example in relation to rest breaks/ periods, holidays and the 48 hour weekly working hours limit. Depending upon the circumstances an employee may also have potential claims for breach of contract and/ or potential constructive unfair dismissal, unfair dismissal and for harassment under the Protection from Harassment Act 1997.

So, how can you reduce the risks of stress- related claims?

The starting point is having a stress policy. As we have seen with recent issues surrounding sexual harassment, however, a policy on its own is not enough- it must be reflected in your culture. You must ensure that the policy is widely communicated to all staff and that it is followed.

One of the best ways to do this is to provide mandatory, regular training to all staff (particularly managers) on the policy and how to identify employees suffering from stress and stressful situations in the workplace and how to deal with them. In The Mental Health at Work Report 2017 referred to above 49% of managers said they would welcome some specific basic training in mental health. This training should also equip managers with the skills and empower them to have conversations with employees about stress and other mental health conditions.

You should also communicate with staff what they should do if they feel stressed. Employees need to feel confident to disclose to their employer that they are suffering from stress or indeed any mental health condition and know that they will be supported, not feel like it could be used against them in some way. And if you are dealing with performance/ capability issues where stress or other mental health conditions are involved or you suspect may be involved then tread carefully as you will need to consider whether the employee has the protection of the Equality Act and adjust your approach accordingly.

If an employee does notify you that they are suffering from workplace stress then you must not ignore it. You must take all reasonable steps to remove that workplace stress. Increasingly, however, you should not be waiting for employees to tell you that they are suffering from work- related stress- you should be proactive and alert to such issues from the point of view of safeguarding your employees’ wellbeing and getting the best from them as well as from the point of view of increasing productivity and looking to reduce the risk of successful stress- related claims.

If you’re looking for guidance and support on any of the issues raised in this article, then do not hesitate to contact any member of our Employment team and consider contacting Mind, our nominated charity for this year, who have a wealth of material and experience in this area.

 


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Interim Report on the Mental Health Act 1983
Wednesday 16th May 2018

In October 2017, the Government commissioned an independent review of the Mental Health Act 1983 (“the Mental Health Act”). The review panel consisted of Professor Sir Simon Wessely (the chair) and vice chairs Stephen Gilbert, Sir Mark Hedley and Rabbi Baroness Julia Neuberger. 

The sole focus was to consider and make recommendations on improving the legislation and practice around the Mental Health Act. The fundamental principle focus was around:-

             a)         More people being sanctioned; and

b)         The disproportionate number of people from Black minority ethnicities detained under the Act; and

c)         That the Mental Health Act may be out of date with the way the people think the mental health system should work now.

However, the most important goal of the review was to make the Mental Health Act work better for everyone.

In order to collect as much information as possible, the panel undertook the following:-

  1. Consideration of over 2,000 survey responses from service users and carers; and
  2. They listened to 320 people at workshops throughout the country; and
  3. Supported over 30 focus groups of service users and carers; and
  4. Attended over 70 meetings and events.

Fundamentally, the report also asked specialists and professionals to look at the information that was collated from the review.

In the interim report (recently produced), it focuses around information that has been drawn to date, and with a strong conclusion that the Mental Health Act needs to change so that people’s dignity is respected when they are sectioned, with a fundamental point that the Mental Health Act cannot achieve this on its own.

The interim report seems to focus on planning for the future, changing the rules to include people’s families and carers when a section situation comes about, and improving community treatment orders.

Interestingly, it also highlighted that the Mental Health Act has been used in some instances incorrectly, with people with learning disabilities or autism, and makes a suggestion that development of a law called the “Mental Capacity Act” in conjunction with the Mental Health Act, could assist with these areas.

Although the review is a positive first step, and the interim report is of some assistance, in my view there is so much more that still needs to be done to focus on the practicalities of mental health day to day, rather than just the technicalities of the law in place.

For more information on the topic please contact Laura Pointon on 0161 8368 824 or via email


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Investigations into gender pay gap reporting to start in June 2018
Thursday 3rd May 2018

The Equality and Human Rights Commission “EHRC” will begin its investigations into employers who have failed to comply with their gender pay gap (“GPG”) reporting obligations this June.

Noticeably, two weeks before the deadline for gender pay gap reporting (6 April 2018) it was widely publicised that nearly 6,000 companies were yet to submit their GPG report.  This is a disappointing approach from some businesses, which could easily have had an adverse impact on the PR, recruitment and internal employee engagement of a business.

The Chair of the Treasury Committee has stated that employers who do not report their GPG data within 28 days of receiving notification from the EHRC will face further action.

This further action, could be the EHRC issuing unlawful notices, written agreements and unlimited fines for failure to comply with the GPG deadline.  In addition, the EHRC will name and shame employers by uploading the results of its investigations on line which will also be available to members of the public.

The EHRC’s announcement follows recent criticism by Maria Miller MP, the Chair of the Women and Equality Commission who accused the EHRC of taking a “toothless” approach to enforcement by not using the full extent of its powers under the Equality Act 2010.

It will certainly be an interesting few months once the investigations are underway.  Will the EHRC actually utilise its enforcement powers as extensively as it is able, or will it take a more relaxed view?

My view, is that if the EHRC want businesses to take the GPG reporting requirements seriously, the breath of their sanctions need to be utilised.

To find out more on the topic, please contact Laura Pointon on 0161 836 8824 or via email


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Trial shifts and tribulations
Friday 27th April 2018

The hospitality sector has been under fire in recent months as a result of practices which, whilst common in the industry, are criticised as being practices which take advantage of lower paid workers.

One of the practices being called out is the hospitality sector’s reliance on trial shifts. As part of the recruitment process, it’s common to require potential recruits to be “put to the test” in the workplace. These “on the job experiences” can vary massively from business to business. Some businesses use it as an opportunity for the candidate to meet the team and may ask that the candidate complete a few simple tasks to demonstrate their skills. At the other end of the scale, some businesses require candidates to complete a full day’s work as part of the recruitment process; such work being unpaid. The well-known American restaurant chain, TGI Friday, hit the headlines last month when Unite the Union alleged that it failed to pay potential recruits for trial shifts of up to six hours.

You may also have seen that a recent Private Members’ Bill which aimed to prevent businesses from using unpaid trial shifts was talked out of Parliament. Whilst the Bill was talked out, it nevertheless demonstrates that attitudes are changing; that people are become increasingly alive to their legal rights at work and that the hospitality sector will continue, at last for the time being, to be under considerable scrutiny. Certainly questions are likely to be asked around this in the event that your business is subject to a National Minimum Wage inspection.

So, what is the law here? The law does not expressly prohibit trial shifts. After all, trial shifts are a useful way of assessing a candidate’s potential. If you want to know whether someone would make a good waitress, for example, there is no better way to check this out than to ask them to demonstrate their skills in a restaurant environment. The tricky bit comes, however, in assessing when an interview stops being an interview and becomes a candidate providing their services for the benefit of their would-be employer (i.e. work). If the trial shift strays into being work, then the individual will be classed as a worker and will have all the rights associated with that label, including the right to the national minimum wage.

Each trial shift will be different and the structure of that shift will be key in establishing whether or not it truly falls within the scope of the recruitment process or not.  As a general rule the longer the trial lasts and the greater the duties and responsibilities placed on the candidate, the more likely it is that the candidate would be deemed to be a worker. On the one hand, a candidate who is asked to carry out a short, supervised exercise without any customer interaction is unlikely to be deemed to be working. On the other hand, however, a candidate who is being let loose with customers is more likely to have strayed outside what can be properly construed as the recruitment process. 

Aside from the legal implications, reliance on trial shifts is also likely to continue to attract negative PR. Given the struggles, particularly in the casual dining arena at the moment, this is perhaps something which businesses will want to avoid and we understand that some operators in the sector have now abandoned trial shifts altogether.

To find out more on the topic, please contact Amy Anderson on 0161 836 8952 or via email.

 


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Failure to pay enhanced shared parental pay is not direct sex discrimination
Friday 13th April 2018

At a time when the government is trying to persuade more parents to take shared parental leave the Employment Appeal Tribunal (EAT) has decided that there was no direct sex discrimination when an employer did not pay a man on shared parental leave enhanced pay equivalent to the enhanced maternity pay it paid to a woman on maternity leave for the same period.

In overturning the Employment Tribunal’s (ET’s) decision, the EAT in Capita v Ali decided that focus had to be on the purpose for the respective types of leave and that to understand that involved an examination of the European and domestic legislation. As a result, the EAT decided that the purpose of maternity leave and shared parental leave are different. Shared parental leave is for the purpose of caring for the child whereas maternity leave is to protect the health and wellbeing of a woman during pregnancy and after childbirth. Addressing the issue that women on maternity leave care for their babies the EAT went on to state that, “that is not the primary purpose of such leave. By contrast, the purpose or reason for shared parental leave is for the case of the beneficiaries’ child.” The EAT emphasised the difference between the purpose of both types of leave when it said that the fact that “maternity leave and pay are provided not or not other than incidentally for childcare is illustrated by the fact that a pregnant woman is entitled to those maternity benefits before the birth of a child.”

Contrary to the ET’s decision, the EAT decided that the correct comparator for a man on shared parental leave was not a woman on maternity leave, rather it should have been a woman on shared parental leave. Furthermore, it found that payment of maternity pay at a higher rate was lawful as it amounted to special treatment afforded to a woman in connection with pregnancy or childbirth under the Equality Act

Working Families, who intervened in this case, raised a possibility, that “…after a period of 26 weeks (or ordinary maternity leave) the purpose of maternity leave may change from the biological recovery from childbirth and special bonding period between mother and child. At that point it may be possible to draw a valid comparison between a father on shared parental leave and a mother on maternity leave.” The EAT noted that while a “claim based on such facts may well give rise” to such a  comparison and highlighted that “The policy of European and domestic law has been to encourage participation of the father in care for his child” it is a matter for parliament; the Courts’ role being to interpret legislation, contracts and policies.

As matters stand, the EAT has made it clear that the pay and the level of pay associated with maternity leave and shared parental leave is inextricably linked to the purpose of that leave, which are both different.

Is this a thorn in the government’s side in its attempts to encourage more parents to take shared parental leave? Where employers who offer enhanced maternity pay aren’t legally obliged to offer the same level of pay to those on shared parental leave I think it’s unlikely that many more parents, will look to take shared parental leave.

So, will the government address this issue?

With the current focus on Brexit it seems unlikely that re- evaluating the purpose of additional maternity leave (the balance of 26 weeks after ordinary maternity leave) will be a priority for the government in the short term despite the potential impact it may have on encouraging more parents to take shared parental leave. As shared parental leave is one of the government’s mechanisms to encourage diversity in the workforce and to tackle the gender pay gap it may have to think of other ways to achieve those aims.

To find out more on the topic, please contact Susan McKenzie on 0151 600 3157 or via email


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Consultation on National Minimum Wage Rates
Friday 6th April 2018

In his July 2015 budget the then Chancellor, George Osborne, announced that the National Living Wage (the minimum wage rate payable to workers aged 25 and over) would rise by 2020 to £9 per hour, which was expected to be 60% of median earnings. The recent rise to £7.38 with effect from 1 April 2018 still leaves us some way behind that £9 target.

To get close to the former Chancellor’s target of £9 by 2020 will require significant annual increases in 2019 and 2020. Clearly, employers need some understanding of the likely rate increase to enable future financial planning.

Employees in lower paid roles have faced years of falling real wages since the financial crisis as living costs increase and campaigners are targeting annual shareholder meetings of major retailers in particular to put pressure on large employers so that improvements on rates of pay are at the top of the agenda. However, some employers, in particular those in the social care and hospitality sectors, have already expressed concern about the impact that the increases in NMW and National Living Wage (NLW) are having and are likely to have on their businesses. 

The Low Pay Commission, the independent body that monitors the effect of the minimum wage and provides advice to the government, has launched a consultation into minimum wage rates.

The focus of the consultation will primarily be on 3 areas:

  • what the minimum wage rates should be from April 2019 to allow it “to advise on the best path towards a target- 60 per cent of median earnings by 2020.” As part of this they would like views on:
  • whether the to the ‘on target’ rate for 2019- currently about £8.20 is affordable and what effects it would have;
  • what impact the NLW increase have had since introduction; and
  • the economic outlook generally.
  • whether as per a Taylor Review recommendation there should be a higher wage for non-guaranteed hours (e.g. zero and short hours contracts) as well as looking into a different way of tackling one of the perceived risks for those with uncertain and unpredictable work schedules, so- called ”one sided flexibility”; and
  • youth and apprentices rates.

The consultation closes on 1 June 2018. For more details see “Low Pay Commission consultation 2018"

If you have any queries about minimum wage enforcement or any issues that arise from the impact that minimum wage increases may have on your business then please don’t hesitate to contact either Joseph Shelston or you usual contact in the Brabners Employment team


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Employee with “pre- cancerous” condition was deemed to be disabled
Friday 6th April 2018

Those of you familiar with the Equality Act 2010 will know that under Schedule 1, paragraph 6 cancer is a “deemed” disability. In practice, this means that cancer is automatically to be treated as a disability and the individual is deemed to have a disability from the point of diagnosis without the need to satisfy the various elements of the statutory test.

In Lofty v Hamis (t/a First Café) the Employment Appeal Tribunal decided that the Claimant who had been diagnosed with a type of skin cancer which had been described in medical evidence as “pre- cancerous” and “in situ cancer” was suffering from cancer and was therefore deemed to be disabled under the Equality Act 2010.

By way of background, the Claimant brought a claim in the Employment Tribunal for unfair dismissal and disability discrimination. The Tribunal decided that she did not have cancer and that she was not “deemed” to be disabled. The Tribunal went on to consider whether the Claimant otherwise satisfied the definition of disability under the Equality Act and decided that she did not. This meant that she did not benefit from the protection afforded by the Equality Act 2010. The Claimant appealed against the Tribunal’s decision.

The EAT decided that the Claimant had cancer and was therefore deemed to be disabled.

The Tribunal was criticised for failing to demonstrate engagement with the medical evidence in its judgment. Medical evidence about the Claimant’s condition had been presented to the Tribunal for it to consider when deciding whether the Claimant was disabled. The condition was described by her GP in a number of ways, including, as being “a precancerous condition…” and in a supporting leaflet from leaflet from the British Association of Dermatologists as “…one type of the earliest stage of a skin cancer called melanoma… a type of melanoma called ‘in situ’ melanomawhich means that it has “…not had the opportunity to spread anywhere else in the body.”

In reaching its decision the EAT stated that, “When determining whether a condition satisfies the deeming provision of paragraph 6, there is no justification for the introduction of distinctions between different cancers or for an ET to disregard cancerous conditions because they have not reached a particular stage.” Further stating that, “…it requires only that the Claimant has cancer.” The judge also made it clear, however, that, “it is not sufficient that they might develop a relevant condition in the future.”

Whilst in this case of a particular type of skin cancer the diagnosis of pre- cancerous cells meant that the Claimant was suffering from cancer and was therefore disabled, the EAT made it clear that a diagnosis of pre- cancerous cells somewhere else in the body might mean something different.

So what does this mean for employers?

Practically speaking, while a condition labelled “pre- cancerous” might not always amount to cancer, medical evidence on the point will be critical. Employers should therefore err on the side of caution when dealing with an employee who has such a diagnosis, seek expert medical opinion and legal advice before taking any action against the employee.

We have been discussing issues like this and how to support employees with cancer in the sessions we have been delivering in partnership with Maggie’s Merseyside at Clatterbridge. To book a place at one of the workshops please click here

For more information on the subject please contact Susan McKenzie or a member of our Employment team


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