Mr Williams worked as a technician at Swansea University and was a member of his employer’s pension scheme. He suffered from a number of complaints which rendered him disabled. From July 2011, he halved his hours of work in order to better cope with his disability. Despite this reduction in his hours, he gradually became incapable of carrying out his job and he took ill health retirement in June 2013.

Under the terms of the pension scheme, Mr Williams received both a pension and an enhanced pension calculated on the basis of his final pay. However, Mr Williams claimed that the terms of the pension scheme were discriminatory. He argued that had he been employed on a full-time basis at the time of his retirement, his enhanced pension would have been double that he received. He noted that his disability had caused him to work reduced hours, therefore he argued he had been unfavourably treated because of something which had arisen in consequence of his disability. The Employment Tribunal agreed that he had been discriminated against on those grounds.

The pension scheme trustees appealed against the Tribunal’s decision. The EAT considered the meaning of the word “unfavourably” in the equality legislation and disagreed with the Tribunal that “unfavourably” could be equated with the concept of being subjected to a “detriment”.

“The determination of that which is unfavourable involves an assessment in which a broad view is to be taken and which is to be judged by broad experience of life. Persons may be said to have been treated unfavourably if they are not in as good a position as others generally would be.” Employment Appeal Tribunal

The EAT felt Tribunal might have applied a “less favourable treatment” test and concluded that Mr Williams was treated less favourably than another disabled person whose disability might not have required him to work reduced hours by the time of his ill health retirement. However, this was the wrong test to apply and it did not mean that Mr Williams had been treated unfavourably.

“Since the Tribunal applied the wrong test, adopted the wrong approach, failed to recognise that anyone who could legitimately claim ill-health retirement under the scheme had to be disabled, and reasoned from inappropriate analogies, its decision that the Claimant was unfavourably treated because of something arising in [...]]]> http://lawandlabour.com/pension-scheme-not-discriminatory/feed/ 0 http://lawandlabour.com/et-incorrectly-assessed-compensation/ http://lawandlabour.com/et-incorrectly-assessed-compensation/#comments Thu, 11 Jun 2015 14:47:00 +0000 http://lawandlabour.com/?p=2201 The Employment Appeal Tribunal (EAT) has found that an Employment Tribunal took the wrong approach when assessing the amount due to a successful claimant. The Tribunal had taken a speculative approach when determining the claimant’s capacity for work and the employer’s response to her absence when such speculation was neither permitted nor necessary.

The claimant, Miss Baverstock, was a former employee of the Prison Service who had brought claims of disability discrimination and unfair dismissal relating to the ending of her employment. She was successful in the Employment Tribunal and was awarded compensation of £67,120.75. Her employer appealed both the Tribunal’s judgment and the size of the award against it.

The EAT found that the Employment Tribunal had decided the claims correctly. However, the Tribunal had erred in the basis on which it had calculated the amount of compensation due to Miss Baverstock, particularly in relation to past loss, future loss and pension loss.

When assessing past loss, the Employment Tribunal had speculated that had Miss Baverstock not been dismissed she would have been entitled to sick pay under her employer’s policy. It had further speculated that once the sick pay had been exhausted, she would have remained in unpaid employment.

The EAT decided that such speculation was unnecessary. The Tribunal should instead have given the employer the opportunity to present evidence first on its sick pay policy and then on whether it might have dismissed Miss Baverstock due to her long-term incapacity.

The EAT also found that the Tribunal had taken an incorrect approach when assessing future loss. The Tribunal had decided, without the benefit of any up-to-date medical evidence, that Miss Baverstock would be unable to work for six months.

The Tribunal had also found that Miss Baverstock would have continued in full employment for a further four years, despite her work history suggesting that such a finding was optimistic.  Past loss is the claimant’s losses between dismissal and the date of the remedy hearing. A claimant who has not secured alternative employment by the date of the remedies hearing or whose new salary and benefits package is less favourable, will have ongoing, future loss. The Employment Tribunal will identify the appropriate cut-off date for future loss.

Given the errors made in the Tribunal’s handling of past and future losses, the EAT decided that pension loss should also be reconsidered. The case was remitted to the same Employment Tribunal for compensation to be reassessed.

CASE The Secretary of State for Justice v Baverstock, Employment Appeal Tribunal, 10 June 2015

In such circumstances the employee is neither an employee nor an applicant of the transferee so they lack the standing to bring a claim under the Equality Act 2010. However, where the employee is facing redundancy, they may pursue a discrimination claim in relation to an offer of suitable alternative employment.

Ms Gunn was employed by Shropshire Doctors who ran an NHS 111 service. She was disabled as she suffered from rheumatoid arthritis. Under her terms of employment with Shropshire Doctors she worked 8½ hours a week.

Responsibility for the 111 service was due to transfer to NHS Direct in March 2013. In November 2012 Ms Gunn learnt that NHS Direct intended her to work 15 hours a week following the transfer. She felt unable to work these hours and offered to work 10 hours a week instead. However, NHS Direct rejected her proposal. Ms Gunn objected to the transfer and was instead found alternative employment with Shropshire Doctors, albeit on less favourable terms.

Ms Gunn claimed that NHS Direct’s failure to allow her to work 8½ hours a week amounted to discrimination on grounds of disability and failure to make reasonable adjustments. NHS Direct applied to strike out the claim but the Employment Tribunal dismissed the application. It found that Ms Gunn fell within the description of “applicant” in the equality legislation.

NHS Direct appealed this finding.

The EAT agreed that the Tribunal had made the correct decision in rejecting the strike out application, but the EAT disagreed with the reasoning behind the Tribunal’s decision. The EAT considered that Ms Gunn could not be regarded as an applicant for a job which would automatically transfer to NHS Direct.

“The essential points which seemed to me well-founded were that the Claimant could not be regarded as an applicant for employment she already enjoyed. Her contract, exactly as it was, would automatically be transferred to NHS Direct. There was no room for any ‘offer’ from NHS Direct to honour it.” Employment Appeal Tribunal

Instead, the EAT raised a new point of argument. It transpired that at the time of the transfer Ms Gunn had been facing redundancy because NHS Direct had planned to close the Shrewsbury site at which she worked. NHS Direct had offered her alternative employment at 15 hours a week, which she had refused.

The EAT decided that in such circumstances Ms Gunn had not been offered continued employment under her existing terms of employment, but a fresh contract of employment. This offer of alternative employment made her an “applicant” for the purposes of the Equality Act.

The appeal was accordingly dismissed.

CASE NHS Direct NHS Trust v Ms L J Gunn, Employment Appeal Tribunal, 14 May 2015

Photographs: © All rights reserved by NHS Direct

Karsten Kaltoft was a Danish childminder who was employed by the local council in Billund. In November 2010 he was dismissed from his job after 15 years’ employment. Kaltoft had been obese for the duration of his employment. He claimed that the reason for his dismissal was his obesity and that this constituted a form of discrimination.

The ECJ considered whether obesity fell within the definition of disability, which would allow the condition to be automatically protected under disability discrimination legislation. The Court found that the question to be asked is whether the employee’s obesity impairs them from participating equally with their workplace colleagues and whether this impairment is long term. If so, then the obesity will constitute a disability.

“Such would be the case if the obesity of the worker hindered that participation on account of reduced mobility or the onset of medical conditions preventing that person from carrying out work or causing discomfort when exercising professional activity.” European Court of Justice

CASE Kaltoft v Kommunernes Landsforening, acting on behalf of the Municipality of Billund, European Court of Justice, 18 December 2014

Miss Casado-Guijarro was employed by Singapore Airlines as a sales officer.  In December 2011 she signed off from work due to “acute stress reaction”.  Following her return to work in March 2012 she experienced three episodes of distress while at work.  She again signed off work in June 2012 with “stress/depression” and had not returned to work by the time of the employment tribunal hearing.

The question for the tribunal to decide was the date at which Miss Casado-Guijarro could first be considered to be disabled for the purposes of the Equality Act 2010.  In the Act a person is not disabled unless they can show that they have a mental or physical  impairment that has a substantial effect on their ability to carry out normal day-to-day activities.

Miss Casado-Guijarro felt she met the test under the Act in July 2010.  However, her employer argued that the correct date should be August 2012, which was the date of an occupational health report that confirmed she was disabled. The employment tribunal decided that Miss Casado-Guijarro was disabled from December 2011, the date when she had suffered a breakdown.

Singapore Airlines appealed the judgment.  They argued that the employment judge had taken into account events that occurred after December 2011 when deciding on the date at which Miss Casado-Guijarro could be considered disabled.  The EAT agreed.  It stated that the employment judge should have restricted herself to evidence that was available in December 2011 and not considered subsequent events.

The matter was remitted to the employment tribunal for fresh consideration.

CASE Singapore Airlines Ltd v Casado-Guijarro, Employment Appeal Tribunal, 14 October 2013