Perceived Disability – Police Officer Discrimination Victim Wins Damages

Even those whose medical conditions or incapacities are not so grave as to amount to disabilities can win compensation if they suffer discrimination in the workplace. The Court of Appeal made that clear in upholding a substantial damages award made to a police officer whose hearing was mildly impaired.

Police carThe officer’s hearing loss had never caused her any problems in doing her job and it was agreed that it was not a disability within the meaning of the Equality Act 2010. However, her application to be transferred to a different force was rejected on the basis of the decision-maker’s perception that her hearing problem meant that she was, or might become, incapable of performing front-line duties.

After she brought proceedings, an Employment Tribunal found that she had suffered direct discrimination, contrary to Section 13 of the Act, and awarded her £26,616 in damages. The decision-maker treated her less favourably on the basis of an actual or potential disability, which amounted to a protected characteristic. That decision was subsequently upheld by the Employment Appeal Tribunal.

In dismissing the force’s challenge to that outcome, the Court found that, although the officer was not disabled, what mattered was the decision-maker’s perception that she was, or might become so. The decision-maker believed that she was suffering from a progressive condition that might have a substantial adverse impact on her ability to perform normal day-to-day activities.

The ET was thus entitled to conclude that the decision-maker’s refusal to engage her involved, perhaps subconsciously, a motive or mental process which was affected by a stereotypical assumption about the effects of her perceived disability. The officer had previously performed perfectly satisfactorily in a front-line role and the Court observed that its conclusions in terms of employment law had achieved a just outcome on the merits.

Circumventing a Collective Bargaining Process is Not Always Unlawful

Employers are generally barred from circumventing collective bargaining agreements by going behind trade unions’ backs and making direct offers to the workers they represent. In a ground-breaking decision, however, the Court of Appeal has ruled that that does not amount to trade unions having a veto over even the most minor changes to their members’ terms and conditions of employment.

The case concerned a technology company which had recognised the sole rights of a trade union to represent its workforce. After collective bargaining failed to achieve an accord in respect of workers’ pay, terms and conditions, a ballot resulted in 80 per cent of the union’s members voting to reject the company’s offer.

The company later made two offers directly to its employees. The first of those offers warned them that a failure to accept the company’s proposals would jeopardise their Christmas bonuses. The dispute was only finally settled, largely in the company’s favour, after the union called for an overtime ban.

In those circumstances, 55 workers launched proceedings under Section 145B of the Trade Union and Labour Relations (Consolidation) Act 1992. An Employment Tribunal (ET) upheld their complaints that the offers had achieved the prohibited result that their terms and conditions would not, or would no longer be, determined by collective agreement, negotiated by or on behalf of the union. In a ruling that was later upheld by the Employment Appeal Tribunal, the company was ordered to pay each of the workers £7,600 in compensation, a total of £418,000.

In challenging that decision, the company explained that it had written to employees individually because it had no idea how many of them were union members and whether or not the union represented the majority. Direct contact with workers had been made for sound business reasons, not least the company’s desire that they should receive their Christmas bonuses.

In ruling on the company’s appeal, the Court noted this was the first time Section 145B had been considered at appellate level. Although no anti-union motivation on the company’s part had been established, the ET was entitled to find that its purpose in making the direct offers was to circumvent the collective bargaining process. However, it did not follow that that was a prohibited result.

If the union were correct in arguing that Section 145B imposes a complete embargo on any direct offers which circumvent collective bargaining processes, the effect would be to confer on unions an effective veto over any direct offer to any employee concerning any term of his or her contract, major or minor, on any occasion. Such an outcome would go far beyond curing the mischief addressed by Section 145B and was extremely unlikely to have been intended by Parliament.

The company’s offers had been made to all its workers, who had not been asked to relinquish, even temporarily, their right to be represented by the union in the collective bargaining process. All that had happened was that the company went directly to the workforce and asked whether they would accept a particular change to their terms and conditions on this occasion. The Court noted that its ruling did not render unions powerless: it remained open to them to ballot their members for industrial action, as in fact occurred in this instance.

Overtime Must Be Factored In To Calculating Holiday Pay – Guideline Ruling

Should voluntary overtime count as ‘normal remuneration’ when calculating a worker’s statutory holiday pay entitlement for the four weeks’ annual leave required under the EU Working Time Directive (WTD)? The Court of Appeal came to grips with that burning issue in a guideline case concerning a group of NHS ambulance service workers.

The workers were entirely free to choose whether or not to work voluntary overtime shifts, but argued that payments they received in respect of those shifts should be factored in when calculating their holiday pay. After achieving a mixed result before an Employment Tribunal, their arguments were upheld in their entirety by the Employment Appeal Tribunal (EAT).

In dismissing their NHS trust employer’s appeal against that ruling, the Court found that the EAT’s decision reflected a true interpretation of a collective agreement incorporated within their employment contracts. The trust’s obligation to take their voluntary overtime payments into account also arose under the WTD.

The Court noted that it had been repeatedly emphasised in European legislation and case law that paid annual leave is a fundamental right. The Court of Justice of the European Union had frequently stated that there must be no disincentive to workers taking such leave and that employers cannot satisfy obligations imposed by the WTD by paying the bare minimum under workers’ contracts.

The exclusion of voluntary overtime from the calculation of holiday pay would carry the risk of encouraging employers to reduce their holiday pay liabilities by setting artificially low levels of basic contractual hours and categorising any remaining working time as overtime. The prevalence of so-called zero hours contracts in the UK meant that such a risk was far from fanciful and provided a very real objection to the trust’s arguments.

Annual leave must, in principle, be determined in such a way as to correspond with the normal remuneration received by a worker, including any voluntary overtime payments or other supplements.

The Court also confirmed that, both under their contracts and the WTD, the workers are entitled to have guaranteed overtime – worked in order to complete ongoing tasks after the end of their shifts – taken into account when calculating their holiday pay.

Sleeping Employment Judge Caused Unfairness in Museum Curator’s Case

Judges spend long hours listening to dense evidence and argument, and they would be superhuman if they did not occasionally nod off. As an employment case showed, however, the consequences of sleepy-headedness can be grave if it affects the fairness of proceedings.

The case concerned a senior curator, employed by a group of museums, who was made redundant after 33 years’ service. Her claims of wrongful and unfair dismissal, age and sex discrimination were subsequently rejected by an Employment Tribunal (ET). Four years later, she sought a position as assistant curator in response to an advert placed by the group, but her application was rejected on grounds that she was over-qualified for the relatively junior position.

After she launched a further complaint against the group, another ET accepted that her rejection for the post amounted to victimisation, contrary to the Equality Act 2010. That was on the basis that the earlier proceedings – which constituted protected acts – had influenced the decision to sift out her application.

In upholding the group’s challenge to that decision, the Employment Appeal Tribunal (EAT) was in no doubt that, very unfortunately, the employment judge who presided over the ET hearing had twice fallen fully asleep whilst the woman was undergoing cross-examination. It was not a case of mere momentary inattention and the group’s legal representative had to deliberately make a noise more than once in order to alert the judge. In those circumstances, a fair-minded and informed observer would have detected a real possibility that the fairness of the hearing had been affected.

The EAT noted that it would have allowed the appeal in any event, in that the ET had failed to reach specific and clear conclusions in respect of the group’s plea that the woman’s over-qualification was the sole reason for her rejection. The EAT directed a rehearing of the woman’s claim and expressed a preliminary view that that should take place before a freshly constituted ET.

Come Up With a Brilliant Invention? Do You or Your Employers Own It?

If employees come up with brilliant ideas, do they have intellectual property rights in them or are they the sole property of their employers? The High Court considered that burning issue in the context of a computer software dispute.

A company applied for international, national and regional patents in respect of a novel and potentially very valuable piece of web-filtering software which could be used for, amongst other things, preventing children from viewing unsuitable websites and blocking unauthorised access to subscription-only sites.

Via his corporate vehicle, a man who formerly worked for the company as a senior systems engineer challenged its ownership of the patent applications on the basis that the software was entirely the fruit of his own inventiveness. He said that he had developed the core ideas on which the software relied at home, in his own time, and on his own computer.

In rejecting his arguments, however, the Court found that, although he had devised one of the primary inventive concepts that led to the software’s development, a colleague had made improvements and he was therefore not its sole inventor. His work on the software in any event fell squarely within the normal course of his duties as an employee, within the meaning of Section 39 of the Patents Act 1977.

The Court noted that he had been specifically employed to create innovative product capabilities for the company, in the knowledge that it was seeking to develop web-filtering software. He was bound to present all his ideas to the company’s product management team and the work he carried out on the software was precisely the kind of task he was paid to perform. He posted his ideas on the company’s intranet, which he knew was for use solely in connection with its business. The company’s ownership of the patent applications was confirmed.