In an interesting case in relation to the “justification” defence to a claim of age discrimination, the EAT in Heskett v Secretary of State for Justice found that aiming to break even year on year by making decisions on the allocation of resources was not a “costs alone” defence and as such was capable of justifying indirect age discrimination. The Respondent operated a policy limiting pay rises across the public sector which was found to be prima facie indirect discrimination against older workers. The Respondent argued it was due to an absence of means rather than “costs alone” (where the employer effectively says they will not implement a process/make an amendment because they believe it would cost them too much money which they are not prepared to spend) which is generally not an adequate defence in indirect discrimination claims.
Just when we thought the position was clear in relation to payment of holiday pay, the Court of Appeal in Northern Ireland (“NICA”) has handed down a decision in the case of Chief Constable of Northern Ireland v Agnew finding that a gap of more than 3 months in a series of deductions did not break the series. The series of deductions relates to the taking of holidays in these cases, and if there was a gap of 3 months between holidays for which the employees were underpaid then the series would effectively start again, meaning employees could not claim for any deductions before that break period. The Court found that the approach in Bear Scotland Ltd v Fulton was incorrect, with possible unfair results. It held that there was nothing in the Employment Rights (N.I.) Order 1996 which expressly imposed a limit on gaps between deductions making up a series. Whilst not formally binding on Tribunals in Great Britain, we should expect to see employees argue this point going forward to try to overturn Bear Scotland which would likely see an increase in the levels of compensation for unpaid wages where holidays are concerned.
(1) Perceived disability
The Court of Appeal in Chief Constable of Norfolk v Coffey has found that to refuse employment because of a perception of a risk of future inability to work in a particular role was unlawful disability discrimination. Whilst Ms Coffey suffered from a degree of hearing loss it had never caused her any problems doing her job and it was not a disability under the Equality Act 2010. Despite this the Norfolk Constabulary wrongly refused her a transfer on the perception the hearing loss would make her unable to perform the role in the future. Ms Coffey succeeded as she was discriminated against because of a “perceived” disability.
(2) Occupational health
In Kelly v Royal Mail Group Ltd, the EAT has handed down a useful decision for employers when relying on occupational health reports when dealing with employees on long term sick leave. Simply rubber stamping an occupational health report in relation to the question of disability of an employee is not permissible (Gallop v Newport City Council). However the EAT in Kelly held that where the report considered the question of disability in detail, in the absence on other evidence, reliance upon it would not be a rubber stamping exercise. As such in relying upon the occupational health report which did not find Mr. Kelly to be disabled the Royal Mail were held not to have discriminated against him by dismissing him as they did not have actual or constructive knowledge of Kelly’s disability.
Shared Parental Leave:
The Court of Appeal in Ali v Capita Customer Management Ltd and Chief Constable of Leicestershire v Hextall held that it is not discriminatory to pay men on shared parental leave less than an enhanced rate paid to women on maternity leave. The Court of Appeal found that men and women were not in comparable positions for the purpose of a direct discrimination claim and an equal pay claim failed as the legislation expressly carves out special treatment for women in connection with pregnancy or childbirth.
The ICO have fined British Airways just over £183 million for data breaches involving the harvesting of 500,000 customers’ data as a result of BA’s website being hacked last year. It’s the biggest penalty handed down by the ICO under the new rules which came into force in May 2018 and equates to 1.5% of BA’s worldwide turnover in 2017 (much less than the 4% maximum).
The watchdog said BA had co-operated with its investigation and made improvements to its security arrangements. However it acts as a suitable reminder to us of the obligations on data controllers and processors to (1) have the appropriate levels of security in place in relation to the processing of personal data; and (2) to ensure compliance with the duty to report breaches to both the ICO and the individual concerned when a sufficiently high risk to the data subject is deemed.
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