Home » Website updates November to December 2020

Website updates November to December 2020

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This page does not apply outside Great Britain.
Last updated 31st December 2020.

Brexit

Brexit and EU law pages reorganised and amended, with two new pages Brexit: Effect of EU law when interpreting Equality Act from 2021 and Ability to amend Equality Act after Brexit. This is partly to reorientate the pages to the position after the end of 2020.

There is also a page on the new UK-EU Trade Agreement.

Also EU Framework Employment Directive page updated, particularly the section on How do UK courts take the directive into account? to include the position after Brexit.

Knowledge of disability

Y v West Yorkshire Combined Authority

In Y v West Yorkshire Combined Authority a claimant who stammers argued that the employer should have made further adjustments to an interview and presentation, for example expressly telling him he had extra time, follow-up questions where his answers were unduly short, and arrangements to enable him to keep eye contact.

The tribunal held that on the facts the adjustments which had been made were sufficient. It also dismissed a claim that being rejected for the job was because of the content of what he said which arose from the stammer; the tribunal decided the claimant had said what he wanted to.

The tribunal found too that on the particular facts the extra time he took for the presentation and his oral communication skills were not a factor in the employer’s scoring.

Examples of jobs

Numerous entries added, and updated entries for Joe Biden (now US president-elect) and Emily Blunt on Examples of jobs done by people who stammer/ stutter:

Covid-19

Part update of Coronavirus (Covid-19), including latest Tier regulations, and guidance (and law in Tier 4) to work from home if possible.

Northern Ireland and Brexit

Northern Ireland disability discrimination law>Brexit updated, in particular with more detail on the implementation and enforcement of the UK’s commitment that Northern Ireland disability discrimination law will not fall below the minimum standards of current or future EU law.

Failure to modify behaviour

Disability: Failure to modify behaviour updated.

Para B7 of the 2011 Guidance says that in deciding whether someone has a disability, the tribunal should take into account how far the person can reasonably be expected to modify their behaviour to reduce the effect of the impairment. Paragraph B9 says negative effects of avoidance strategies should also be taken into account.

On the page I set out why it can be strongly argued that para B7 does not apply to avoidance strategies for stammering, such as substituting words or avoiding difficult situations. They should however be taken into account as adverse effects of the stammer.

Disability employment gap – call for evidence

The Work and Pensions Committee has launched an inquiry into the disability employment gap, and has issued a call for evidence (parliament.uk). The Committee wants to hear from as many people as possible, especially disabled people. The call for evidence is also available in other formats (parliament.uk).

“Cost plus” principle: justification defence

Objective justification defence>Issues of cost updated and Court of Appeal decision in Heskett v Secretary of State for Justice added:

Heskett v Secretary of State for Justice, Court of Appeal, 2020
The Court of Appeal upheld the “cost plus” principle, in the sense that the saving or avoidance of costs will not without more amount to a ‘legitimate aim’ in seeking to justify discrimination. However this does not prevent an employer from relying on a legitimate aim of needing to reduce its expenditure, specifically staff costs, in order to balance its books. Even so, the employer still has to show that the measures complained of were a proportionate means of achieving that aim.

New example of reasonable adjustments

Example added to Examples of reasonable adjustments: In the job>Telephone: Set phrases or script:

When answering the phone, someone who stammers reworded the opening line to leave out the company name, which he normally struggled to say. The training team started listening to calls and he was marked down for leaving out the company name. He explained about the stammer in an email to the training team. They were happy to make the reasonable adjustment and let him carry on.

Some days, eg if tired, he struggles to say even his altered version. For these times he has recorded himself saying the opening line, using the microphone app on his phone. He can play this down the phone when he answers a call, if he needs to. It may sound a bit robotic, but no one has mentioned it sounds any different.
Getting a reasonable adjustment to help me take calls at work (stamma.org), November 2020.

20th anniversary of stammeringlaw, 1999-2019