Holiday Pay: another case in the long running dispute
The Employment Appeal Tribunal has confirmed that a three-month gap between underpayments of wages breaks a “series of deductions”, preventing the Employment Tribunal from having jurisdiction to consider claims relating to earlier underpayments therefore limiting the scope to make retrospective claims for underpaid holiday pay under the unlawful deduction from wages jurisdiction. In doing so, the Employment Appeal Tribunal has affirmed the 2014 decision of Mr Justice Langstaff in Bear Scotland Ltd v Fulton and another  IRLR 15. Langstaff J’s interpretation of a “series of deductions” was part of the ratio of that case, and therefore binding. None of the established exceptions for departing from another EAT decision existed and, even if they did, it was not permissible to depart from an earlier decision in the same set of proceedings.
The Employment Appeal Tribunal rejected the claimants’ argument that the effect of Langstaff J’s decision was to create a strong, but rebuttable, presumption that a three-month gap breaks a series, but not a universal rule that it does so in every case. It also dismissed a comparison with another case in which the Court of Appeal considered the word “series” under the whistleblowing detriment provisions of the Employment Rights Act 1996. That decision on the interpretation of a different statutory provision could have no bearing on this case.
In The Government Legal Service v Brookes  UKEAT 0302_16_2803 the Employment Appeal Tribunal held that a job applicant with Asperger’s Syndrome was discriminated against by being required to sit a psychometric test.
The Government Legal Service (GLS) was recruiting lawyers in what the Employment Appeal Tribunal called “a fiendishly competitive recruitment process”. The GLS recruits around 35 trainee solicitors each year and receives thousands of applications for these posts. The process included a multiple choice Situational Judgement Test (SJT).
Ms Brookes contacted the GLS and requested adjustments on the ground of her Asperger’s Syndrome. She was informed that an alternative test format was not available although time allowances were. She completed the SJT and failed. She claimed disability discrimination.
The Employment Tribunal concluded that a ‘provision, criterion or practice’ (PCP) that being the requirement that all applicants take and pass the SJT test put a group people such as Ms Brookes at a particular disadvantage compared to those who did not have Asperger’s Syndrome. It went on to find that the PCP put Ms Brookes, in particular, at such a disadvantage.
Further, while the PCP served a legitimate aim, the means of achieving that aim were not proportionate to it, and, accordingly, Ms Brookes’ claim of indirect discrimination succeeded. The Employment Appeal Tribunal also upheld the finding that, by refusing her request to provide answers to the test in narrative form rather than choosing from multiple options, the GLS failed in its duty to make reasonable adjustments.
The Employment Appeal Tribunal agreed with the Employment Tribunal. The Employment Tribunal was entitled to conclude the PCP placed Ms Brookes at a particular disadvantage because she has Asperger’s Syndrome. Additionally, her psychiatrist had made previous recommendations in relation to her university courses that a multiple choice format test would not be appropriate for her.
The Employment Appeal Tribunal further held the Employment Tribunal adopted the correct approach when carrying out a proportionality assessment, but acknowledged that whilst the GLS needed to test the core competency of ability of its candidates to make effective decisions; a psychometric test was not the only way to achieve this.