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1st November 2017

Discrimination update

In a summer brimming with employment law developments we take a look at some recent key decisions in discrimination cases, including the increase to Vento Bands for personal injury awards in discrimination claims and a significant decision in relation to Shared Parental Pay.

Ali v Capita Customer Management Limited (“Capita”)

Shared parental leave was introduced on 5 April 2015 and allows parents to share the majority of a birth mother’s entitlement to statutory maternity leave and pay. In the present case, following the birth of their daughter, Mr Ali’s (“A”) wife was diagnosed with post-natal depression and advised to return to work. The couple decided that A should take a period of shared parental leave to stay at home and care for their daughter.

Capita provided employees on maternity leave with enhanced maternity pay, entitling them to 14 weeks’ full pay. However, shared parental pay was not enhanced. A issued claims in the Employment Tribunal, claiming that Capita’s failure to enhance shared parental pay in line with enhanced maternity pay amounted to direct discrimination on the basis of A’s sex.

To establish that direct discrimination had taken place, A had to show that he had been treated less favourably than a female member of staff would have been. He contended that as the purpose of his period of leave was to care for his recently born child, it was proper that his treatment should be compared to the treatment of a woman who was also absent from work to look after a recently born child i.e. a woman on maternity leave. Capita disputed this, claiming that the purpose of maternity leave was fundamentally different to the purpose of shared parental leave and that A’s treatment should be compared to that of a woman on shared parental leave.

The Tribunal was persuaded by A’s arguments. It held that beyond the two-week protected period, the purpose of maternity leave and shared parental leave was the same: to care for a child. Therefore, A was entitled to compare his treatment to that of a woman on maternity leave and, as such Capita had directly discriminated against him.

The Employment Tribunal’s approach in this case runs counter to that taken in similar recent cases, which determined that maternity leave was significantly different to shared parental leave and additional parental leave. This inconsistent approach leaves the law in an unclear and unsatisfactory state. Although Capita has appealed this decision, if you provide a generous enhanced maternity package you may wish to be cautious and enhance shared parental pay too. While this will likely result in additional costs it may add to levels of employee engagement and encourage an increase in the low uptake of shared parental leave.

De Souza v Vinci Construction (UK) Ltd

In discrimination cases, successful claimants can usually expect to be awarded an amount for ‘injury to feelings’. Injury to feelings awards, which are designed to be compensatory to the victim rather than punitive to the discriminator, are calculated based on the severity of the discrimination and are generally awarded based on levels set out in the so called ‘Vento Bands’.

The case before the Court of Appeal concerned the calculation of Ms De Souza’s (“D”) injury to feelings award. At an earlier remedies hearing, D had been awarded £9,000 for injury to feelings. D argued that this should be uplifted by 10% to reflect the Court of Appeal’s 2012 decision in Simmons v Castle. In that case the Court of Appeal held that the level of general damages in certain types of claims (including discrimination claims issued in the County Court under the Equality Act 2010 [“EqA”]) should be increased by 10% to reflect recent changes in the civil costs regime which left some claimants worse off. D claimed as the wording of the EqA requires that awards in the Tribunals correspond to awards in the County Courts, the 10% uplift should apply to Tribunal claims.

This position was resisted by Vinci, which asserted that as the civil costs regime does not apply to cases in the Employment Tribunal, the 10% uplift should similarly not apply. The Court of Appeal disagreed. It held that the wording of the EqA was clear. It required that Tribunal awards correspond to awards in the County Court. By extension this meant that any uplift to awards in the County Court (as required by the Simmons v Castle judgment) should similarly apply to awards in the Employment Tribunal.

Shortly after the Court of Appeal gave judgment in this case, new Presidential Guidance was published which sets out significantly increased Vento Bands that reflect not only the 10% uplift but also allow for recent increases in inflation. These will apply to claims presented on or after 11 September 2017 and are:

  • Lower Band (for one off or less serious cases of discrimination): £800 to £8,400
  • Middle Band (for more serious cases): £8,400 to £25,200
  • Top Band (reserved for only the most serious cases of sustained discriminatory conduct): £25,200 to £42,000

Charlesworth v Dransfields Engineering Services Ltd

Section 15(1) EqA prevents employers from treating disabled employees unfavourably because of something arising as a consequence of their disability. This is the case unless the employer can show that the treatment in question is a proportionate means of achieving a legitimate aim. A commonly used example is the employee who is dismissed because he has a high level of sickness absence as a result of his disability. Unless the employer can show that the dismissal was a legitimate means of achieving a legitimate aim, the employee may have been discriminated against.

Mr Charlesworth (“C”) was employed as a branch manager for Dransfields. He was diagnosed with renal cancer and consequently was absent from work from October to December 2014. Dransfields was not profitable and it had been looking to make cost savings since 2012. During C’s period of absence his employer realised that it could restructure its business in such a way as to remove C’s role in its entirety. This would represent a cost saving of up to £40,000 per year. In April 2015 C was made redundant following a period of consultation.

Claims were issued by C in the Employment Tribunal which included a claim that his dismissal was for a reason arising from his disability, namely his sickness absence. He contended that as Dransfield had realised it could manage without him during his sickness absence the reason for his dismissal was for a reason arising from his disability.

The Tribunal disagreed, finding that C’s sickness absence was not an effective cause of the decision to dismiss him. Although it accepted that the absence had highlighted the fact that C’s role could be eliminated, the decision to remove C’s role was not caused by his absence: his absence was simply the context in which the decision to remove his role was made. C appealed to the EAT which upheld the Tribunal’s decision.

This case reminds employers that it is possible to fairly dismiss employees who have been on sick leave for extended periods of time for reasons linked to, but not caused by, their absence. That said, great care should be taken in these circumstances. The reason for dismissal should be clear in the decision maker’s mind and the rationale should be meticulously recorded.

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