January case round up – Is caste discrimination a protected characteristic?
In this month’s e-news we consider whether caste discrimination is a protected characteristic within the meaning of the Equality Act, when the duty to make reasonable adjustments where a person is disabled arises, and whether exchange of e-mails amounts to a binding agreement in the absence of entering into a Settlement Agreement.
Caste Discrimination – Is it Lawful?
The Government is currently considering whether caste discrimination is a protected characteristic within the meaning of the Equality Act. Notwithstanding this, the Employment Appeal Tribunal (EAT) considered in the case of Chandhok and another v Tirkey EAT/0190/14 whether an employee could bring a claim for caste discrimination.
Ms Tirkey worked for Mr and Mrs Chandhok as a domestic worker. Her caste was Adivasi which is known as a “servant caste” and IS considered to be a low caste. Ms Tirkey brought claims in the Employment Tribunal alleging that she had been treated unfavourably on the grounds of her race and religion. She subsequently amended her claim to bring an additional claim of caste discrimination on the grounds that she was treated badly because of her caste. Mr and Mrs Chandhok applied to the Employment Tribunal to strike out her claim on the basis that caste was not a protected characteristic and did not fall within the definition of race within the Equality Act. The Employment Tribunal did not strike out the claim. Mr and Mrs Chandhok appealed to the EAT. The EAT also dismissed the appeal and permitted the claim to proceed to a full hearing. The Judge held that Ms Tirkey could bring a claim for caste discrimination as it came within the definition of ethnic and national origin within the meaning of race discrimination in the Equality Act.
This is an interesting judgment as the Judge in this case said it was irrelevant that the Government had not determined whether caste amounted to a protected characteristic in its own right. The Judge was of the view that it was already covered within the meaning of ethnic and national origin. Employers should in light of this decision be mindful of the fact that employees can bring claims for discrimination relating to their caste.
Can an exchange of emails amount to a binding settlement?
In the case of Bieber v Teathers Limited 2014 this issue. The parties entered into negotiations prior to hearing to resolve a dispute. Prior to the hearing the claimant accepted by e-mail a settlement offer from the defendant. The claimant in the acceptance e-mail stated that a draft consent order would be circulated. The defendant responded to this e-mail stating “Noted with thanks”.
The defendant circulated a lengthy settlement agreement to reflect the terms and included additional terms, which were not discussed as part of the monetary offer that was being negotiated. The claimant was not happy with the terms of the settlement agreement and refused to sign it. The claimant argued that the terms had been agreed irrespective of the fact that a settlement agreement had not been entered into. The Court held that exchange of e-mails between the claimant and defendant amounted to a binding agreement. The Judge stated that if there was an intention to have subsequent terms attached to the offer then the email should have expressly stated that the offer was “subject to contract”.
This case highlights the importance of ensuring that any negotiations that are conducted are always headed not only “without prejudice” but also state “subject to contract”. Alternatively, the offer should state that it is subject to the signing of a suitably worded settlement agreement.
When is the duty to make reasonable adjustments triggered?
This was considered in the case of Doran v Department for Work and Pensions UKEAT/0017/14.
Mrs Doran worked for the Department for Work and Pensions (DWP).
In January 2010 she went on sickness absence as a result of stress.
On 26 May 2010 DWP gave Mrs Doran notice of dismissal explaining that it could no longer support her absence. Her employment was subsequently terminated. Mrs Doran brought a number of claims including the fact that DWP had failed in its duty to make reasonable adjustments in facilitating her return to work.
DWP stated that reasonable adjustments had not been triggered because Mrs Doran had not informed her employer of a return date or given any indication that she would be returning to work.
The EAT held that the duty to make reasonable adjustments was not triggered because Mrs Doran was certified unfit for any work and had given no indication of when she might be able to return to work.
This is helpful guidance to employers as this suggests that the employer’s duty to make reasonable adjustments is triggered when there is an indication that the employee might be fit to return to work.
In the News
In last month’s e-news we reported that the Government’s new fit to work service is going to be implemented later this year. In light of this new service coming into force the Department for Work and Pensions has published three guidance notes for GPs, employers, and employees. This scheme will be introduced on a phased basis which is due to be completed by May 2015.
ACAS has published a revised code of practice on disciplinary and grievance procedures, which has amended the guidance on a worker’s right to be accompanied. The revised code sets out the statutory requirement for a request by a worker to be accompanied at a disciplinary or grievance meeting. The revised code is currently awaiting parliamentary approval. The Government has published details of 37 employers who have failed to pay their employees the correct national minimum wage. The 37 employers who have been “named and shamed” owe £177,000 in arrears and have been charged more than £51,000 in financial penalties. This continues to highlight the importance of ensuring that employers pay their employees the National Minimum Wage.
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This briefing is for guidance purposes only. RadcliffesLeBrasseur accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.