In Elliot v Dorset County Council, the Employment Appeal Tribunal (EAT) has recently allowed an appeal against an Employment Tribunal’s finding that a claimant was not disabled. The EAT held that the Tribunal had failed to adopt the correct approach when determining whether the claimant had a disability according to the statutory definition of disability in section 6 of the Equality Act 2010. 

In order for a Tribunal to find that a claimant has a disability, the claimant must have a physical or mental impairment which has a substantial and long term adverse effect on their ability to carry out day to day activities. In this case, the EAT held that this statutory definition is clear cut – if the adverse effect of a claimant’s impairment has more than a minor or trivial effect on their ability to carry out day to day activities, then the definition of ‘substantial’ is met. If it is unclear, only then can the guidance contained within the Equality Act 2010 (the ‘Guidance’) or the EHRC Employment Statutory Code of Practice (the ‘Code’) be referred to, confirming that the statutory definition of disability prevails.

This case is useful for employers who are unsure of whether a claimant meets the statutory definition of disability in discrimination cases, as the threshold for the impairment having a substantial adverse effect is low – simply put it must be more than minor or trivial. If required, parties may refer to the Guidance and the Code during proceedings if the impact of the physical or mental impairment on day to day activities is unclear; following which a comparison can be undertaken between people who are broadly similar to the claimant, save for the alleged disability in order to determine whether the impairment on day to day activities is ‘substantial’.

Sex Discrimination

In Price v Powys County Council, the EAT has upheld the decision of an Employment Tribunal that it is not discriminatory for an employer to provide enhanced adoption pay but no enhanced shared parental pay. The claimant in this case was a man who alleged that the differences in the employer’s company policies would amount to direct sex discrimination, due to the fact that a man on shared parental leave would receive less pay than a woman on statutory adoption leave.

The EAT confirmed the decision of the Employment Tribunal and held that the underlying purpose of Shared Parental Leave and Statutory Adoption Leave were materially different. It held that Shared Parental Leave is aimed at parents being able to provide flexible childcare arrangements, giving them a choice as to when to take the leave, whereas the purpose of Statutory Adoption Leave goes beyond childcare alone, and is additionally designed to encourage adoptive parents to form a bond with the adopted child, and to enable them to make arrangements for their welfare. In addition, the EAT confirmed that the Tribunal had been correct to decide that the two policies operated in materially different ways as Shared Adoption Leave could only be taken in one continuous block and was an immediate entitlement on the placement of the child, whereas Shared Parental Leave could be taken in discontinuous blocks after the birth or placement of the child.

This case is helpful for employers when identifying the correct comparator in direct sex discrimination cases. In this case, the correct comparator was a woman on Shared Parental Leave; since a woman would have received the same pay as a man on Shared Parental Leave under the employer’s policy, there was no direct sex discrimination.

Working Time

We recently commented on the decision in Royal Mencap Society v Tomlinson-Blake in which the Supreme Court decided that time spent by workers sleeping on site during a sleep-in shift will not count towards a care worker’s National Minimum Wage. In the joint cases of DJ v Radiotelevizija and RJ v Stadt Offenbach Am Main Plumbers, the European Court of Justice (ECJ) considered whether ‘on-call time’ was ‘working time’ or ‘rest time’ for the purpose of the Working Time Regulations 1998.

These cases concern two workers who were based in Slovenia and Germany who were required to be on stand-by. In the DJ case, the claimant was not required to remain at his place of work but had to be contactable by telephone and able to return within one hour. In the RJ case, during periods of stand-by, the claimant had to be reachable at any time and have his service uniform and vehicle ready in the town boundary within 20 minutes.

The Court held that ‘working time’ only covers situations where the entirety of the period of stand-by during which the constraints imposed on a worker, objectively and very significantly affect their ability to freely manage their time. In the absence of such constraints, only time spent on the provision of work actually carried out during a ‘stand-by’ period will count as working time. Practically speaking, it will be difficult for employees to argue that the whole of a stand-by period will count as working time, since the restrictions imposed will depend on the nature to which the employee is prevented from pursuing their own interests. The Tribunal will need to have regard to the average frequency of the activities requested by an employer of a worker during standby periods, and the impact that any number of restrictions may have upon their ability to enjoy their time on standby as they choose.

While the ECJ’s decision in these cases was given after the end of the transition period following the UK’s exit from the EU, Employment Tribunals may still have regard to post-Brexit ECJ case law, so far as it is relevant to any matter before it. The decision may therefore be taken into account by courts and tribunals applying the Working Time Regulations 1998 in the UK.

Compensation Limits and Statutory Rates of Pay

Finally, we recently wrote about the changes to the National Minimum Wage and National Living Wage rates, which came into effect on 6 April 2021. In addition to those changes, the following increases have been made to compensation limits awarded in the Employment Tribunal and to statutory rates of pay also effective from 6 April 2021: