Employment Bulletin - June 2019

In this issue:

  • Dismissal may be discriminatory even if employer does not know of disability until appeal hearing. (Baldeh v Churches Housing Association)
  • A one of act of discrimination will not limit the tribunal in making an injury to feelings award within the lowest Vento bracket (Base Childrenswear Ltd v Otshudi)
  • Guidance Update: Safer working practices for those working with children and young people in education settings. (Guidance)
  • Shared Parental Leave and Sex Discrimination(Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall)
  • Side effects and definition of disability (Mart v Assessment Services Inc)
  • Employers must properly record all daily working time to be measured (Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE)
Dismissal may be discriminatory even if employer does not know of disability until appeal hearing

The Employment Appeal Tribunal (‘EAT’) has held in the case of Baldeh v Churches Housing Association that despite the employer being unaware of the employee’s depression until the appeal stage, the dismissal was still discriminatory.

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A one off act of discrimination does not limit the tribunal in making an injury to feelings award within the lowest Vento bracket.

The Employment Appeal Tribunal (‘EAT’) in the case of Base Childrenswear Ltd v Otshudi has held that when making an injury to feelings award within the Vento bands, a one off act of discrimination does not mean that the award has to fall within the lowest bracket.

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Guidance Update: Safer working practice for those working with children and young people in education settings.

The Safer Recruitment Consortium has updated the original Department for Education (‘DfE’) guidance published for schools entitled ‘Safer working practice for those working with children and young people in education settings. (Guidance)

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Shared Parental Leave and Sex Discrimination.

The Court of Appeal in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall has considered whether it was unlawful discrimination on the basis of sex for men to be paid less on shared parental leave than birth mothers are paid on statutory maternity leave. It was held that no discrimination will occur, either direct or indirect, where an employer pays a male on shared parental leave less than the enhanced rate of pay a woman on maternity leave would receive.

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Side effects and definition of disability

The EAT in Mart v Assessment Services Inc. has considered the definition of disability in relation to poor vision, and specifically whether side effects from treatment to correct an impairment should be considered when assessing disability.

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Employers must properly record all daily working time to be measured

This issue of the records employers are required to keep in order to comply with obligations under the Working Time Directive was considered in the Spanish case of Federación de Servicios de Comisiones Obreras (CCOO) v Deutsche Bank SAE. The outcome of this is that employers must keep a record of all hours worked.

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