Oral assessments and presentations in recruitment
Applying EU law after 31st December 2020
Updates for two Court of Appeal decisions from March 2021:
- Lipton v BA City Flyer (bailii.org), discussed at Route map for retained EU law: new Court of Appeal Judgment (eurelationslaw.com), and
- TuneIn v Warner Music (bailii.org) discussed at Departing from retained EU case law: new Court of Appeal judgment (eurelationslaw.com).
As to where I’ve added these cases:
- TuneIn case added to Effect of EU law when interpreting Equality Act from 2021>What test is applied in deciding whether to depart from EU Court decisions? – it is the first case where the court has considered whether to depart from EU court decisions under the new rules.
- Both cases relevant in Effect of EU law when interpreting Equality Act from 2021>Departure from pre-2021 EU court decisions not permitted if claim arose before 2021? – I think (but we await a court decision) that if the discrimination happened before 1st January 2021, then most likely even the Supreme Court and Court of Appeal are still bound by pre-2021 EU court decisions.
- Lipton case added in UK-EU Trade and Cooperation Agreement>Could UK courts give effect to the non-regression clause? The case gives an inkling of how important s.29 EU (Future Relationship) Act 2020 may become in the UK courts giving effect to the Trade Agreement.
I’ve also added a new paragraph in Effect of EU law when interpreting Equality Act from 2021>EU court decisions made after 2020 saying I think that even if the discrimination happened before 1st January 2021, the UK court is not bound by a post-2020 EU court decision (but may have regard to it). Again we await a UK court decision on this.
Compensation for injury to feelings
Revised ‘Vento bands’ for employment claims started on or after 6th April 2021. These three bands guide employment tribunals on levels of compensation for injury to feelings under the Equality Act.
Stammering starting in adulthood
“Adults new to stammering” support group (stamma.org), a new group started by Stamma and meeting online, added to links at the end of my Stammering starting in adulthood page.
O v TC Facilities Management
In O v TC Facilities Management, 2020, the claimant’s employment was terminated without notice due to his alleged “verbal and threatening behaviour towards management” at a meeting. Part of the problem was him speaking loudly and quickly at the meeting – he had a stammer which caused him to do this when trying to communicate under stress. The employment tribunal rejected his claims for unfair dismissal and wrongful dismissal. He did not make an Equality Act claim.
This is only one of at least three cases where a claimant argued that behaviour perceived as shouting or threatening, which led to their dismissal, was a result of their stammer. I’ve added a new section to bring these three cases together: see Losing one’s job>Misconduct, such as sounding “aggressive”.
I’ve also generally reviewed and updated the Losing one’s job page.
Lowe v Cabinet Office
I’ve expanded my page on Lowe v Cabinet Office, a 2011 employment tribunal decision on an assessment centre day. Much of it relates to communication abilities. It’s not an appeal case, so not a binding precedent.
Ms Lowe was unsuccessful in her tribunal claim for reasonable adjustments to an assessment centre for the Civil Service Fast Stream. She had Asperger’s Syndrome. The tribunal said the further adjustments she sought would have meant that important competencies concerning relationships and communication were not assessed. There was compelling evidence that the competencies being assessed were, in practice, required on a daily basis in the workplace.
Examples of jobs
- Big Heath: Man who battled stammer becomes rapper thanks to help of Kanye West (stories.swns.com), 2016
- Further link for Mark Jones, rugby player: Stammer: Former Wales rugby player ‘hated’ himself (bbc.co.uk), March 2021.
Stammering on BBC prime-time
‘I Can’t Say My Name: Stammering in the Spotlight’ (BBC iPlayer) is now available to watch online. It was shown on BBC One at 7:30pm Wednesday 10th March.
On the Stamma website you can also watch an exclusive interview with Felicity Baker and Sophie Raworth (stamma.org) on reactions to their BBC documentary.
These are linked from Felicity Baker on Examples of jobs done by people who stammer/ stutter.
VL v Szpital Klinicnzy
EU Court decision in VL v Szpital Klinicnzy added. It was decided after 31st December 2020 so British courts are not bound by it but “may have regard to it”. The employer offered a monthly allowance to people submitting a disability certificate after a certain date to encourage more people to do so, but not to those who had submitted a certificate before that date. The EU Court held this could be either direct or indirect disability discrimination, despite the fact that the claimant (who had submitted her certificate before the date) was comparing her treatment with that of other disabled people. The decision may encourage a broader approach to indirect discrimination: see VL v Szpital Klinicnzy>Williams v Swansea case. It also tends to broaden the EU concept of direct discrimination.
- Previous updates: Website updates January to February 2021.