CILEx L6 Employment Law 2 — Questions and Answers
Question 1: What is the protected characteristic of 'disability' under the Equality Act 2010 and what is the test?
- A physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities (s.6 EA 2010) (Correct answer)
- Any illness or health condition that prevents working
- Any long-term condition lasting more than 12 months
- Any condition recognised by a medical professional as a disability
Correct answer: A physical or mental impairment that has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities (s.6 EA 2010)
Under s.6 Equality Act 2010, a person is disabled if they have a physical or mental impairment that has a substantial (more than minor or trivial) and long-term (12 months or more) adverse effect on their ability to carry out normal day-to-day activities.
Question 2: What is 'indirect discrimination' under the Equality Act 2010?
- Applying a provision, criterion or practice (PCP) that is facially neutral but puts persons sharing a protected characteristic at a particular disadvantage compared with others, unless the PCP is a proportionate means of achieving a legitimate aim (Correct answer)
- Deliberately treating a person less favourably because of a protected characteristic
- Harassing an employee because of a protected characteristic
- Victimising an employee for bringing discrimination proceedings
Correct answer: Applying a provision, criterion or practice (PCP) that is facially neutral but puts persons sharing a protected characteristic at a particular disadvantage compared with others, unless the PCP is a proportionate means of achieving a legitimate aim
Indirect discrimination (s.19 EA 2010) requires: (1) a PCP, (2) applied to persons with and without the protected characteristic, (3) which puts persons with the characteristic at a particular disadvantage, and (4) which puts the individual at that disadvantage, unless (5) it is a proportionate means of achieving a legitimate aim.
Question 3: What are 'TUPE' regulations and when do they apply?
- The Transfer of Undertakings (Protection of Employment) Regulations 2006 — they apply on a business transfer or service provision change, automatically transferring employees and their existing terms and conditions to the new employer (Correct answer)
- Regulations allowing employees to transfer between group companies
- Regulations governing agency worker rights on transfer to a permanent employer
- Regulations applying only to public sector transfers
Correct answer: The Transfer of Undertakings (Protection of Employment) Regulations 2006 — they apply on a business transfer or service provision change, automatically transferring employees and their existing terms and conditions to the new employer
TUPE 2006 applies where there is a relevant transfer (a business transfer or service provision change). On a relevant transfer, employees engaged in the transferred undertaking automatically transfer to the new employer on their existing terms and conditions. Dismissal connected to the transfer is automatically unfair.
Question 4: What is a 'protected disclosure' under the ERA 1996 (whistleblowing)?
- A disclosure of qualifying information (in the reasonable belief of the worker that it tends to show a relevant failure) made to the employer or a prescribed person, which attracts automatic unfair dismissal protection (Correct answer)
- Any complaint made by an employee about their treatment at work
- A disclosure to a regulator about a colleague's misconduct
- Any report to the police of a criminal offence
Correct answer: A disclosure of qualifying information (in the reasonable belief of the worker that it tends to show a relevant failure) made to the employer or a prescribed person, which attracts automatic unfair dismissal protection
Under the ERA 1996 (as amended by PIDA 1998), a protected disclosure requires: (1) qualifying information — the worker reasonably believes it tends to show a relevant failure (e.g., criminal offence, health and safety risk, miscarriage of justice), (2) the worker reasonably believes disclosure is in the public interest, and (3) it is made to the employer, regulator, or in certain circumstances more widely.
Question 5: What is the maximum compensatory award for unfair dismissal?
- The lower of the statutory cap (annually adjusted, currently £115,115) or 52 weeks' pay, but there is no cap for health and safety and whistleblowing dismissals (Correct answer)
- There is no statutory cap on unfair dismissal compensation
- The cap is 24 months' pay in all cases
- The compensation is always limited to the amount the employee would have earned until retirement
Correct answer: The lower of the statutory cap (annually adjusted, currently £115,115) or 52 weeks' pay, but there is no cap for health and safety and whistleblowing dismissals
The compensatory award for unfair dismissal is capped at the lower of the statutory cap (annually adjusted) or 52 weeks' gross pay. However, the cap does not apply to dismissals for whistleblowing (protected disclosure) or health and safety reasons.
Question 6: What is the duty to make 'reasonable adjustments' for disabled employees under the Equality Act 2010?
- Where a provision, criterion or practice, physical feature, or absence of an auxiliary aid puts a disabled person at a substantial disadvantage, the employer must take reasonable steps to avoid the disadvantage (Correct answer)
- The employer must make all requested adjustments to the workplace
- Only physical adjustments to the workplace are required
- The duty applies only where the employer knows the employee has a disability
Correct answer: Where a provision, criterion or practice, physical feature, or absence of an auxiliary aid puts a disabled person at a substantial disadvantage, the employer must take reasonable steps to avoid the disadvantage
S.20-21 Equality Act 2010 imposes three requirements: adjustments to PCPs, removal/alteration of physical features, and provision of auxiliary aids — where each puts the disabled person at a substantial disadvantage compared to non-disabled persons. What is 'reasonable' depends on factors such as cost, practicality, and effectiveness.
CILEx L6 Employment Law 2
What is the protected characteristic of 'disability' under the Equality Act 2010 and what is the test?