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3 Things We Learnt In Law This Week (17 January 2019)

Disabled Shop Worker Wins Tribunal Award From M&S Over Lift Key

An Employment Tribunal (ET) has made an award of £1,000 against Marks and Spencer after a delay in providing a disabled shop worker with a lift key to allow him to reach the toilets more easily.

In Mitchell v Marks and Spencer plc, the ET held that the employer breached its duties under section 20 and section 21 of the Equality Act 2010 to make reasonable adjustments for disabled workers.

Mr Mitchell has a disability that requires him to go to the toilet frequently. He reached the second-floor staff toilets using the goods lift, the stairs, or a combination of the escalator and the stairs.

An operation meant that Mr Mitchell anticipated more frequent toilet visits. He said that both before and after the operation he raised the issue of getting a lift key to the customer lift with various managers. While he waited for a key to be cut, he could use the goods lift.

After his operation, he was not provided with a customer lift key and chased the issue up with management. A key to the customer lift was provided for him about 10 days after his operation.

Mr Mitchell claimed disability discrimination in the ET, which upheld his claim by a majority.

The ET accepted that using the customer lift rather than the goods lift did make a difference for Mr Mitchell, in terms of “speed, reliability and convenience”.

The ET rejected the employer’s argument, albeit by a majority, that there was not much difference between using the customer lift and using the goods lift.

The ET awarded £1,000 to Mr Mitchell for injury to feelings.

The ET accepted the employer’s arguments that the award should be low because of the short length of the delay, the lack of malice or deliberate conduct and the “relatively minor character of the injury to feelings”.

Colour Blindness Deemed Not To Be Disability At Tribunal

A claimant’s red-green colour blindness could not be considered a disability under the Equality Act 2010, an ET has found.

InBessell v Chief Constable of Dorset Police, the ET held that a claimant’s red-green colour blindness is not a disability.

Mr Bessell has red-green colour blindness. The combination of grey and pink also causes him difficulty. He brought a disability discrimination claim, which could not proceed unless he could show that his impairment met the definition of a disability under the Equality Act 2010.

This issue turned on whether or not his condition has a “substantial and long term adverse effect on [his] ability to carry out normal day-to-day activities”.

Mr Bessell argued that his condition affects the normal day-to-day activities of cooking, reading/interpreting documents/text and watching sport. He said that he cannot tell by the colour whether or not meat or fish products are fresh. Forms with grey and pink sections and the colours on subway maps cause him some difficulty.

He cannot distinguish between the brown and green balls in snooker, unless they are on their spots. The ET pointed out that coping strategies mean that his colour blindness does not substantially affect these activities. He can use smell and texture to determine the freshness of food.

There is “no reason to believe that Mr Bessell would take appreciably longer to get the hang of forms or maps than most people”. Commentary and captioning are normally available when watching sport.

The ET therefore concluded that Mr Bessell’s colour blindness does not have a “substantial and long term adverse effect on [his] ability to carry out normal day-to-day activities”.

It is not a disability under the Equality Act 2010 and his disability discrimination claim could not proceed.

Flexible Working Has Plateaued, CIPD Study Finds

The number of people using flexible working arrangements has flatlined since 2010, despite the right to request flexibility being extended to all employees since 2014.

This finding is contained in a report launched this week by the CIPD, Megatrends: Flexible Working, released in co-ordination with a campaign to boost the numbers of people working part time, in job shares, term time, or in compressed hours.

The Flexible Working Task Force, which is behind the campaign, is a partnership across government departments, business groups, trade unions and charities, and will encourage employers to advertise jobs as flexible by using the strapline ‘Happy to Talk Flexible Working’ in their job advertisements, regardless of level or pay grade.

The report suggests there has been a rise in more informal flexible working, such as more people working from home on an ad hoc basis, but according to the CIPD far more flexibility could be implemented.

Opportunities are being missed because of unsupportive manager attitudes, limited available options and the negative assumptions of some employees about flexible working, for example that their job may be at risk if they seek to change their working patterns.

As part of its efforts to increase uptake, the task force is highlighting the business benefits of flexible working which include:

  • Addressing skill and labour shortages by making work more accessible to older people and those with caring responsibilities, for example
  • Improving productivity by increasing employee motivation
  • Boosting job satisfaction, engagement and well-being, while also helping to reduce sickness absence
  • Helping organisations to retain staff, particularly those with caring responsibilities
  • Creating more diverse workforces which reduces the gender pay gap by giving more opportunities for women to progress into senior roles.

All members of the task force, co-chaired by the Department for Business, Energy and Industrial Strategy and the CIPD, have committed to advertising jobs as flexible. Members include the Confederation of British Industry, Chartered Management Institute, Federation of Small Businesses, Trades Union Congress, Age UK, Carers UK, Timewise Foundation, Working Families, ACAS, the Department for Work and Pensions and HM Treasury.

SCE Solicitors is a boutique employment law practice based in Leeds which advises clients nationwide.  Please note that the information in this blog is to provide information of general interest in a summary manner and should not be construed as individual legal advice. Readers should consult with SCE Solicitors or other professional counsel before acting on the information contained here.

Emma Roberts
Latest posts by Emma Roberts (see all)
Emma Roberts

Emma is a trainee solicitor at SCE Solicitors. Emma commenced her training contract in September 2018 and is currently working in the employment law department assisting director Samira Cakali. Emma also assists in the running of the firm’s myHR service where she can support you in the day-to-day management of your staff.

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