London Health and Safety Group Monday 17 th March, 2014.

London Health and Safety Group

Monday 17th March, 2014

The Equality Act and Health and Safety Adjustments

• Presented by Albert Peters,M.Sc,FCIPD • Director• Pegasus Human Resources• Email [email protected]• 01379898784• 07760178070

Equality Act 2010

• What does it do?• It draws together and updates and amends

previous discrimination legislation and regulations

• It draws disability into the Discrimination “fold”

What was the previous legislation?

• Most of it came from the 1970’s and has not been changed in major way since then

• Sunset legislation – what is/was it?• When was the first major piece of legislation

on Health and safety?• When was the first piece of legislation on

Disability?

Legislation

• Offices shops and Railway premises Acts 1890’s and 1963, some pieces of it still in force in 2008

• Factories Act 1891 etc and 1961, [email protected]

• Health and Safety at Work Act 1974

• Disability Discrimination Act 1995, 2005 etc

• It attempts to capture and codify current requirements

• Does it work?

• For a time?

What does legislation do?

Back to the future

• The impact of the Equality Act 2010.

• What has happened?

• Who has made these changes?

Cases that have gone to Tribunal or EAT and their resolution

• Mental health care (UK) Ltd Versus Biluan • The criteria for dismissal here were far too

objective (by HR) and needed the input of employing Managers and Performance Appraisal Outcomes

• Whilst this was a Redundancy case it brings home the need for organisational care

Discrimination

• London and South East Railways v Aderemi• Situation – major lower back problems and

standing as a ticket collector at stations• Two tests • First What is the definition of disability?• Second What test did the Tribunal say should

be applied?

Aderemi continued• First test You’re disabled under the Equality Act 2010 if you have a

physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities. What ‘substantial’ and ‘long-term’ mean

• ‘substantial’ is more than minor or trivial - eg it takes much longer than it usually would to complete a daily task like getting dressed

• ‘long-term’ means 12 months or more - eg a breathing condition that develops as a result of a lung infection

• Second Test the ET in this case said that you should look at what the individual cannot do rather than what they can do, EAT agreed.

Discrimination

• London Borough of Redbridge v Fuller• Situation Lady who suffered badly from asthma

and found difficulty with open office windows, heat in offices

• Third test The law requires that steps are taken to reduce the disadvantage and the duty to be relatively flexible

• Needed to consider computer speech synthesis etc

Discrimination

• Croft Vets Ltd v Butcher• Situation Butcher was a diagnosed depressive

and was sent to a psychiatrist who recommended a physiological/deep psychiatric review which was not taken up.

• Outcome The EAT thought that it would allow her to return to work earlier ( into a stressful situation)

• Other views NHS Treatment into work factors

Discrimination

• Secretary of State for work and pensions (Job centre plus) v Higgins

• Situation Higgins had a heart condition and the employer offered 13 weeks of sick leave. Higgins wanted 26 weeks before return. Job Centre said no. He went to ET

• outcome EAT said that Job Centre should have insisted on 13 weeks and then reviewed. His progress

Discrimination

• Wade v Sheffield Hallam university• Situation Redundancy situation Disabled

Wade was dismissed as he did not meet the core competencies requirement at interview.

• Outcome EAT supported the recruitment procedure however said that if he was disabled and had skills he should have been slotted in elsewhere.

Discrimination

• Novac v Phones4U Ltd• Situation. Novac fell down stairs and other

staff felt he was playing on this and put entries onto facebook repeatedly over a period of time

• Outcome ET felt that the postings should have been removed instantly and therefore suggested that it was discrimination not to do order that it should be so.

Discrimination Questionnaires

• Abolished from 6 April 2014

• Warning Consider usuing the principles of possible complaint on disability discrimination cases as part of the ongoing review of any disability cases in house.

Investigation of cases

• Stuart v City of London Airport• Situation This unfair dismissal case based

upon the suggestion by the employer that Stuart had stolen some shop goods in the duty free area centred upon the fact that the employer had not interviewed witnesses and had not therefore obtained sufficient evidence

• Suggestion Be thorough in a balanced way with cases.

Disability Other cases

• The Secretary of State for Work and Pensions (Jobcentre Plus) v Jamil & Ors (Disability)

• Situation Mrs Jamil who had dormant condition of rheumatoid arthritis worked at Job centre plus in Ealing and was repeatedly late because of childcare responsibilities. Her Arthritis flared up and she wanted to be transferred to Uxbridge nearer to her home

• JCP recognised her condition and the fact that she had a disability. They repeatedly denied her request for a transfer.

• ET thought that she had established a prima facie disability case however they (JCP) did not keep it under review. Disability is the only protected characteristic under the EQ2010 if an employer fails to make a reasonable adjustment

• Section 20(3) of EQ2010 says “The first requirement is a requirement, where a provision, criterion or practice of A’s puts a

• disabled person at a substantial disadvantage in relation to a relevant matter in comparison with

• persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the

• disadvantage.”

• Cast v Croydon College [1998 IRLR 318 CA] applies. This says that if an organisation has a Disability Policy it must use it.

• JCP resolutely refused to considerUxbridge so they lost

• JCP didn’t want her at Uxbridge because her husband worked there!

Other cases

• There a lot• Notable amongst them is,• Salford NHS Primary Care Trust v Mrs A Smith

which considers that rehabilitation is an adjustment too far;

• of Jobcentre Plus v Higgins which found that an offer of reduced working hours did not breach the duty to make reasonable adjustments;

Other cases

• the time limits of reasonable adjustments and the EAT transcript of Jobcentre Plus v Jamil;

Final aspects of EQA Sections 20,21 and 22

• European Court of Human Rights and the UK• UKEQA2010 talk about• 1Not putting a disabled person at a substantial

disadvantage• 2 physical features to avoid disadvantage• 3 provision of auxiliary aids• 4provision of information in accessible format• 5 Cost burdensome aspect

Personal cases

• Costs One man and his dog• Providing dog basket in the office for his guide

dog and providing a white on black Computer for a recruitment consultant

• Receptionist’s operation• Providing an occupational health intervention

which resulted inan operation and resumption of full time non sickness absence working

Personal case – last slide

• My father and Oscar Pistoriuos

• Situation several legs!!

Summary

• Individual cases different approach• Newness of the legislation• Moves away from “Gold plating”• Compliance with UN protocols and EHRC

• Role of Occupational health and Health and Safety and line management versus HR

• Good luck with it all!!!

Albert Peters Approach

• Practical• Pragmatic• Advisory• [email protected]• 07760 178070• 01379898784