Employment – Case Law Update

Our Employment team bring you their regular update of recent decisions in employment law cases

When do employers have a duty to carry out risk assessments for pregnant workers?

The Employment Appeal Tribunal has recently held that the obligation to carry out a risk assessment in relation to pregnant workers is not a general one. The duty will arise only when the following three preconditions are met:

1. The employee has notified the employer in writing that they are pregnant
2. The work is of a kind that could involve a risk of harm or danger to the health and safety of the mother or her baby
3. That risk arises from processes, working conditions or physical, biological or chemical agents in the workplace.

It is possible that an employer’s failure to carry out a risk assessment where their duty to do so has arisen may result in allegations of discrimination, however this recent decision has confirmed that the failure will not amount to discrimination per se.

Employers therefore need to be astute in ensuring risk assessments are carried out where the preconditions are satisfied, and the employee is provided with comprehensive information about those risks to her health and safety which have been identified.

Some employers may choose to act prudently and conduct risk assessments as a matter of course upon notification that an employee is pregnant.

Can there be discrimination on the grounds of political philosophy?

A recent Employment Appeal Tribunal decision held that a belief in man-made climate change and the environment is capable of falling within the protection against discrimination on grounds of religion or belief.

It would appear therefore that discrimination laws are so wide-reaching that they now cover philosophical beliefs, including a belief in a political philosophy. However whilst support for a political party in itself would not meet the description of a philosophical belief, the law could cover beliefs based on a political philosophy such as Marxism, communism and free-market capitalism.

For obvious reasons there must be some limit placed upon the definition of ‘philosophical belief’ and this case suggested that the belief relied on must be “worthy of respect in a democratic society and not incompatible with human dignity”.

Inevitably further cases testing the limits of protected philosophical beliefs will be brought.

Can a carer be discriminated against under the Disability Discrimination Act?

The Employment Appeal Tribunal has confirmed that the Disability Discrimination Act can be construed so as to prohibit direct discrimination and harassment against an employee on grounds that they care for a disabled person, even though the Act actually protects only those who are disabled themselves.

The Tribunal said the Act should be construed, so as to add a new subsection: “A person also directly discriminates against a person if he treats him less favourably than he treats or would treat another person by reason of the disability of another person.”

The application of these words in the long term is likely be documented in the Equality Bill currently going through Parliament, which intends to prohibit associative discrimination.

Can “stigma damages be awarded in discrimination cases?

In this landmark decision, the Court of Appeal has ruled that an employer who has been found to have unlawfully discriminated in dismissing an employee can be liable for compensation reflecting the stigma which results from the employee having taken discrimination proceedings against the former employer, and where there is evidence that other employers have been unwilling to employ the dismissed employee for this reason.

The Court of Appeal, however, ruled that “the original employer must remain liable for so-called stigma loss”, even where the actions of the third party employers are unlawful. It recognised that stigma loss “is one of the difficulties facing an employee on the labour market.”

Unfortunately it is not clear what evidence tribunals need to be provided with before awarding stigma damages.

Are volunteers entitled to the protection of discrimination legislation?

The Employment Appeal Tribunal has ruled that a volunteer worker who does not have a contract does not have “worker” status so as to be protected by the Disability Discrimination Act or the Framework Employment Equality Directive.

The claimant provided specialist legal advice on a weekly basis. She argued that volunteer work fell within the meaning of the term “occupation” for the purposes of the Framework Directive, and that “occupation” had wider scope than “employment”. She also contended that volunteering constituted an “arrangement” for recruitment, so that she should be able to claim that she was discriminated against on grounds of disability.

The Tribunal, however, held that “occupation” in this context referred to qualifications and professional requirements needed for access to employment or promotion. In conclusion the Framework Directive imposed no obligation on a national government to implement provisions for those voluntary workers not protected by a contract.

The Court of Appeal granted leave to appeal, and it is likely a reference to the European Court of Justice will be sought.

For assistance in clarification of your responsibilities as an employer, contact our employment team at commercial@blasermills.co.uk.