Who is an excluded worker?

Bowden & others v Tuffnells Parcels Express, IDS Brief 663, EAT

• Bowden and her colleagues were clerical staff. In 1998, the right to paid annual leave was introduced by the Working Time regulations but Bowden was told she was not entitled to this because she worked in an excluded “sector of activity”, namely road transport.

Her tribunal complaint was unsuccessful. Regulation 18 applied a blanket exclusion to all workers in the road transport sector irrespective of whether the individual was a mobile or non-mobile worker.

Bowden appealed. The EAT found that the blanket exclusion of regulation 18, which denied Bowden – and thousands of other non-mobile workers – the right to paid leave simply because of the sector in which they worked, defeated the broad purpose of the directive.

Rather than dismissing the appeal, proceedings were stayed pending a ruling of the ECJ on specific issues – could UK legislation be construed to take account of the directive’s purpose and what test should the national court apply to determine which employees in the road transport sector should be excluded from the right to paid annual leave?

London Borough of Hammersmith and Fulham v Farnsworth, unreported, June 2000, EAT

• Farnsworth had suffered from depression for a number of years. She was offered a position with Hammersmith as a residential social worker but this was subject to a medical assessment. Hammersmith’s medical expert advised that Farnsworth’s medical history could affect her ability to do the job but did not go into great detail and Hammersmith made no further enquiries.

The offer of employment was withdrawn. Farnsworth brought a successful disability discrimination claim which Hammersmith appealed unsuccessfully to the EAT.

The EAT took into account the Court of Appeal decision in Clark v Novacold, which held it was necessary to identify whether the reason for the less favourable treatment related to the disability and whether others, to whom the reason did not apply, would have been treated differently. Applying this approach means that knowledge of the disability is irrelevant and less favourable treatment is discriminatory unless that treatment can be justified.