Special educational needs (SEN)
Brexit page updated:
- Following the General Election result, the UK’s membership of the EU is likely to end on 31st January 2020, on the terms of the Withdrawal Agreement. However under this Agreement the UK will remain bound by almost all EU law during the ‘implementation period’ until the end of 2020 (unless extended).
- Essentially, even after the end of the implementation period (31st December 2020 unless extended) UK courts should normally continue to interpret the Equality Act in line with pre-Brexit decisions of the EU Court of Justice.
- From the end of that period, however, the British parliament will be entitled to amend the Equality Act without regard to EU law, subject to the outcome of negotiations with the EU.
- An important issue over the coming year will be how far any agreement between the UK and EU on their future relationship includes restrictions on the UK’s ability to change employment rights: see Brexit>Any restrictions in EU agreement on future relationship?
- Also a change in the Withdrawal Agreement Bill, given a Second Reading by the House of Commons on 20th December, is that the government will be allowed to make regulations allowing courts other than the Supreme Court to depart from pre-Brexit EU case law in some cases. It will be interesting to see what the regulations say. See Brexit>Regulations allowing departure from EU case law.
Employment compensation awards
Part update of Remedies in employment disputes: Compensation and recommendations, including tax on compensation for injury to feelings, and statistics on compensation awards for disability discrimination in 2018/19.
Online tribunal decision database, and anonymity orders
Online tribunal decision database, and anonymity orders updated to reflect the Court of Appeal decision in L v Q Ltd (bailii.org). Names in that case had already been anonymised. The Court of Appeal refused to hold that the employment tribunal decision should not be published at all, and refused to anonymise the disabilities by calling them “Condition A” and “Condition B”.
Harassment of workers by third parties, eg customers
In Bessong v Pennine Care NHS Foundation Trust a mental health nurse was assaulted and racially abused by a patient. The employment tribunal held the employer was liable for ‘indirect discrimination’ under s.19 EqA, as regards its failure to ensure all racial abuse was reported. This part of the tribunal decision was not appealed, so it stands but is not a binding precedent.
The Employment Appeal Tribunal upheld the tribunal decision that the inaction by the employer was not harassment contrary to s.26 EqA, because the employer did not have a discriminatory motivation.
However the tribunal decision on indirect discrimination points up a way in which an employer may be liable here even if it does not have a discriminatory motivation. More: Harassment of employees>Harassment by third parties, such as customers or suppliers.
- Previous updates: Website updates September to October 2019.