BENIGN MOTIVE IS NO EXCUSE FOR DISCRIMINATION

In Amnesty International v Ahmed, the Employment Appeal Tribunal confirmed that an employer that treats an employee less favourably on racial grounds cannot escape liability for direct discrimination simply because it has potentially justifiable reasons. The case involved Ahmed, a Sudanese woman, who was refused a promotion to the position of Sudan researcher by Amnesty as they believed that the appointment would compromise their perceived impartiality as well as expose Ahmed and others to unacceptable safety risks. Ahmed resigned and claimed for race discrimination and constructive dismissal. EAT held that the tribunal had been right to conclude that Amnesty committed an act of direct discrimination as the decision not to appoint her was based solely on her ethnic origin. It was irrelevant that Amnesty had a benign motive for its actions.

The EAT’s analysis for the test for direct race discrimination involved a useful examination of the relevant case law. To summarise, in determining whether less favourable treatment is on “racial gounds”:

• The correct approach is to ask the reason why the treatment complained of occurred. The question of whether the employer would not have done the act "but for" the claimant's race can provide misleading answers;

• The fact that an employer has a benign motive for treatment does not necessarily mean that the reason for that treatment is not race;

• There will be some cases where it is not clear from the nature of the employer's actions that race was the reason for the treatment. Here, tribunals should examine the employer's conscious or unconscious motive for acting to help determine what the reason for the treatment was.

GUIDANCE ON PART-TIME EMPLOYMENT OF SCHOOL PUPILS

A large number of businesses employ school pupils on a part-time basis to cover weekend shifts, including paper-boys and paper-girls for example. The Department for Children, Schools and Families has published Guidance on the employment of children of compulsory school age, which aims to explain the law and promote best practice to those who employ children of compulsory school age. The Guidance includes information on age limits for employing children and their hours of work; the types of work a child may do; health and safety requirements; the implications for local authorities, employers, schools and parents of employed children; and safeguarding children.

The Guidance covers employment in England only, although Wales and Scotland may implement their own guidance in future. Further information is available at www.dcsf.gov.uk

SUBSTANTIAL CHANGES IN WORKING CONDITIONS UNDER TUPE CAN AMOUNT TO DISMISSAL

In Tapere v South London & Maudsley NHS Trust, regulation 4(9) of TUPE 2006 was considered. The regulation states that when an employee resigns where there has been a substantial change in working conditions to their material detriment, this will amount to dismissal. However, whether there has been a substantial change in working conditions of material detriment is a question of fact which is to be determined having regard to the nature as well as the degree of change.

The case involved Ms Tapere who was transferred from one primary care trust to another under the TUPE regulations. Ms Tapere claimed that the move affected her ability to take and collect her daughter from school and she subsequently resigned. She claimed constructive dismissal due to the substantial change in her working conditions which had been to her material detriment.

The EAT held:

• Whether there had been a substantial change in working conditions was a question of fact to be determined having regard to degree and nature of the change;

• ‘Working conditions’ includes both contractual and physical conditions;

• The impact of the proposed change had to be considered from the employee’s point of view;

• For a substantial change to be to an employee’s material detriment, the impact of the change must be more than trivial or fanciful;

• A major relocation of the workplace which makes it difficult or much more expensive for an employee to transfer would be likely to be covered.

Ultimately the EAT held Ms Tapere had been dismissed. The question of whether her dismissal was unfair is currently being put to a fresh tribunal.

EMPLOYEE MUST READ TERMINATION LETTER BEFORE LIMITATION PERIOD RUNS

In Gisda Cyf v. Barratt, the Court of Appeal followed the EAT’s decision confirming that when an employee receives notice of his or her summary dismissal by letter, the Effective Date of Termination of Employment (“EDT”) is the date the employee actually reads the letter and not the date it is written, posted or delivered. The case involved Barratt who was suspended by her employer, a charity called Gisda Cyf, due to allegations of inappropriate conduct at a private party which was witnessed by a client of the charity.

A disciplinary hearing told Barratt she would hear of the decision on Thursday 30th November and on Wednesday the 29th November the letter was posted. However, Barratt was away and only saw the letter on Monday 4th December.

Gisda Cyf tried to argue that the tribunal should have focused on how it was reasonable for Barratt to ring home and check the decision of the hearing since she was told the letter would have arrived on the Thursday.

However, the Court of Appeal dismissed the employer's arguments and found that:

• The tribunal was entitled to make its findings on the facts and so were correct to say that Barratt did not have the reasonable opportunity of reading the letter.

• The three month time limit to bring a claim should not run before the employee actually knows he or she has been dismissed. This view it was felt was in line with the legislative’s aim of fairness.

Therefore, the majority held the EDT was 4 December, the date the letter was read, and so Barratt’s claim was within the three month time limit. This may make employers have to think carefully about how a dismissal is communicated and whether a special delivery letter or employer franked postmark will make it less likely for the employee to open it and therefore say the dismissal has not been effective.

STATUS OF DISABILITY IS DEFINED WITHIN CAREER PROGRESSION

In Chief Constable of Lothian and Borders Police v. Cumming, Ms Cumming’s application to become a regular constable was rejected because she failed vision standard for recruitment due to a minor visual impairment. She brought a claim for disability discrimination.

However, the EAT reversed the decision of the tribunal stating that participation and progression in a particular professional life was not a normal day-to-day activity under the DDA. The EAT thus distinguished the decisions in Chacon Navas v. Eurest Colectividades SA and Paterson v. Commissioner of Police of the Metropolis.

Equally, the EAT stated that while Cumming’s eyesight impairment did give rise to some adverse effects, they were limited and minor in character and not substantial within the meaning of s.1 in the DDA.

The EAT also noted that the status of disability for the purposes of the DDA could not be dependent on how the employer reacted to the employee’s impairment.

Ms Cumming’s claim was therefore rejected.