Issues of Defining Disability in the Equality Act 2010

Disability in the United Kingdom makes up around a fifth of the total population, yet only one eighth of the total people actively in work are disabled.[1] This indicates that there is definitely a negative correlation in being disabled whilst working and it seems that the law should work to narrow this gap. Until 1995 there were no measures in place to combat disability discrimination at work until the government introduced the Disability Discrimination Act 1995.[2] This new legislation was only given slight welcome from disabled rights campaigners because of the lacking standards in the Acts provisions, in particular was the narrowness of the definition of disability itself.[3] In more recent times this issue has been addressed through the Equality Act 2010[4] which states that a person is classed disabled if they have a physical or mental impairment that has a substantial and long term effect on day-to-day activities.[5]  Furthermore there is also common law pre 2010 to follow that would combat situations of disability discrimination that are more than likely to happen again.[6] This shows an effective use of the law in identifying disability cases of discrimination because the law broadens its perspective on what could be justified as a disability which prevents the law becoming narrow and unreasonable.

However there is issues in applying the definition itself, Section 6(3) of the Equality Act 2010 make reference to individuals who share the same characteristics is the same as them both having the same disability.[7] Keen highlights an important point when he discusses that just because the disabilities are the same does not mean that they affect the individuals in the same way towards a role, this shows that they would not share the protected characteristic of disability for the purposes of the Act.[8] In addition disabilities must present a physical or mental impairment, mental illnesses were only counted as impairment until it was recognized as a clinical illness and as a result this was updated in 2005.[9] The EAT have made it apparent that mental illness is subject to a qualified professional opinion supported in evidence and generalised descriptions like “stress” would not be adequate as seen through case law.[10] It appears this promotes fairness in this area of law because it seeks to prevent any claim being put forward even if they are very slight in nature. This equality can be seen through direct discrimination cases which require the employment tribunal to decide in accordance with the evidence provided and to restrain from ‘stereotyped’ characteristics of a mental illness.[11] Substance addictions do not amount to an impairment however if they lead to causing an impairment it does not matter.[12] This is further seen in McNicol v Balfour Beatty Rail Maintenance Ltd where The Court of Appeal effectively dealt the correct approach.[13] This shows the law adapting to areas with stigmas attached to them and it seeks to promote impartiality and equality of opportunity here. Gould makes a fair assessment of these changes as he explains that the implementation of The Equality Act 2010 greatly increases the scope of mental health discrimination claims through allowing them on the basis of perception, association and third party harassment, he further adds that it benefits employees in the respect of employers being limited to making pre-employment health enquiries.[14] 

In addition impairments must have a ‘substantial effect’[15] on the individual which was not defined in the statute. However the intention is to include impairments having an effect which is more than minor or trivial.[16] Here the EAT summarised that the Act concerns the impairment impacting on the individual’s ability to carry out tasks, it appears the focus here is based upon things that the person cannot do or only with struggle rather than what they can actually do.[17] This approach avoids the risk of a tribunal concluding that as there are many things an applicant can do, the adverse effect of the impairment cannot be substantial as seen through case law.[18]  In addition the statute states that the impairment is classed as being long term if lasted for more than twelve months or is likely to last the rest of the individual’s lifetime[19] also temporary capacity can be a disability.[20] Furthermore an interesting point discussed by Petts reflects the decision made in Patel v Oldham Metropolitan Borough Council which involved an illness developing from an illness and that this aggregated with the subsequent period in order to satisfy the threshold criteria.[21] Petts argues that evidence gained post discrimination which adds on time even if it’s brought about through an illness in order to simply satisfy the 12 month period should be discredited.[22]  This is a fair statement and should be taken into account when dealing with the substantial effect of a disability in claim and the law should seek to clarify this issue. 

Moreover the impairment must create an adverse effect on the individual’s ability ‘to carry out normal day-to-day activities.’[23] Schedule 1 of the DDA contains an exhaustive list.[24] However the Equality Act does not feature such a list which leaves this issue to the guidance contained in paragraph D2.[25] This clearly creates a grey area in the law and this should be looked at in order to create a more simplified system in dealing with disability discrimination. On the other hand Hepple rightly argues otherwise, he remarks that this ‘should make it easier for people whose impairments do not readily match any of the eight capacities to show that they meet the definition of a disabled person’.[26] Furthermore another key issue surrounding this area is based upon the reference of ‘normal day-to-day’ activities being excluded from a tribunal having made account of the individual’s ability to carry out work based activities.[27] Even though in guidance work based activities are not taken into account in the determination of ‘normal day-to-day activities’[28] this goes in the way of what the EU law determines as Hosking’s discussion on how the ECJ makes clear that the claimant requires to identify the limitation as a direct result of a physical or psychological impairment which hinders the participation of professional life.[29] This is another example of the scope of the law for the protection of disability discrimination and the EU’s method is more effective because it places the burden of proof on the claimant and this is good as it prevents false claims being made.    

Moving on the Equality Act 2010 section 15 refers to the employer treating a person of disability in a certain way amounting to a detriment.[30] However this is an improvement in this area of law because the previous definition contained in the DDA[31] turned on two critical issues. This was firstly that a degree of knowledge of the complainant’s disability was needed in regard to the employer.[32] Also who was the suitable comparator when deciding if less favourable treatment had taken place?[33] Fair treatment of this system is seen through O’Neill v Symm & Co Ltd[34] where the EAT held that a woman was not discriminated against because the employer had no knowledge of her condition. However the EAT disagreed with this in H J Heinz Ltd v Kenrick[35] and held that it was not necessary for the employer to have knowledge of the disability, they decided that the reason may include ‘a reason deriving from how the disability manifests itself even where there is no knowledge.’[36] This shows dispute from the governing body in this particular area which should be clarified. In addition the next area that presented problems was shown through Clark v Novacold Ltd[37] where the tribunal identified two possible approaches to the comparison required in section 5(1)(a). The first was a like-for-like comparison in regard to the treatment of the disabled person and the treatment of the individual who was unable to fulfil all the requirements of the job, but for a reason unrelated to disability.[38] Furthermore the second involves comparison between the treatment of the disabled person and the treatment of the individual who was able to fulfil the requirements of the job.[39] In practice the second approach is more likely to result in less favourable treatment and this puts the expectation on the employer to show evidence in spite of that treatment.[40] As a result the initial approach is less likely to end in less favourable treatment which means that there is a lesser need to show evidence.[41] Through the case of High Quality Lifestyles Ltd v Watts the Court of Appeal applied the second causative approach.[42] The approach in Novacold held its authority among legal representatives until the decision of Lewisham LBC v Malcolm showed the Lords deciding that a like-for-like comparison was required under the Disability Discrimination Act 1995.[43] Regardless of whether this decision rendered the supposedly less challenging disability discrimination indistinguishable from the then ‘direct’ disability discrimination, the choice was clearly at odds with the legislation.[44] However Parliament responded quickly to this by introducing the 2010 act definition.[45] This shows the government improving the law when it creates difficult ways of interpretation and is a good example of how deep the scope of the law is in combating disability discrimination in the workplace.

Moreover the law places employers under a duty to make reasonable adjustments which is contained in the 2010 Act, if any such individual is placed at a significant disadvantage towards any criterion, provision and practice but also a physical feature of the premises and a lack of aid for them in the workplace.[46] A failure to comply with this duty would result in unlawful discrimination however a complaint regarding a failure to make reasonable adjustment would not depend on proving that there has been less favourable treatment.[47] Hughes discusses how it is this criterion that is ‘central’ to nearly if not all claims to do with disability discrimination to which point it is effective.[48] To begin with the Disability Discrimination Act allowed employers to argue a justification to making a reasonable adjustment; however the significant changes in 2004 removed this justification defence primarily on the basis that the adjustments only need to be reasonable.[49] This clearly shows the law being fair and adapting itself to the benefit of society in this area. One issue regarding this issue is to do with reasonable adjustment in terms of what constitutes it, Waddington argues that the UK adopts a ‘duel’ approach to this.[50] He discusses that this notion of ‘reasonableness’ has been taken to convey the effectiveness of the accommodation and also that is does not impose significant inconvenience or cost to the employer themselves.[51] On the other hand academics have subjected this method of ‘reasonableness’ to a severe critique, Lawson discusses ‘Because such departures will be required only if they are deemed to be ‘reasonable’, they will necessarily be modest and limited. A departure from normal practice will not be deemed reasonable, and therefore not required, if it would inflict an undue level of hardship on the duty-bearer.’[52] It appears that Lawson’s view is clearly siding with the employer here and this means that Waddington’s discussion is a more fair assumption of the reasonableness in relation to reasonable adjustments being made in the workplace because it promotes fairness on both sides of the agenda which the law should work towards regardless.

Some issues are apparent in relation to how the definition of disability is applied in law, firstly there is considerable weight placed on a tribunal to conclude a medical defence. The EAT has held that an error of law can be made if the tribunal relies too much on medical opinion in that regard.[53] Nelson J who discusses this effectively in Abadeh v British Telecommunications plc says that the report should be limited to the diagnosis of the impairment and the assessment of the individual’s ability to carry out day-to-day activities and whether the medication benefitted them in performing them.[54] On the other hand a tribunal is not obliged to accept true medical evidence it may not neglect this type of evidence over its own impression of the individual during the case.[55] In addition the statute protection extends as far as those whom have had a disability in the past and have made a full recovery.[56] This is because such an individual may experience discrimination even though they have made recovery and this is showcasing the act adopting the social model of disability.[57] Although this is discussed as an issue it seems ineffective because the law here is protecting those who are prone to wrongful discrimination and this shows scope for protection in this area of law.

Moving on one criticism on the way that disability law has been poorly drafted from a theoretical point of view is based on the medical and social model.[58] Wells discusses that the medical model which the UK laws are based upon view disability as a problem for the person, that they are required to show evidence of their disability in correlation with a particular definition in the statute.[59] He writes that the issue lies with the individual and this is a personal one and is unrelated to external factors, the social model views the situation more broadly and recognises that the issues disabled people face are due to social phenomena and the real problem lies with practices and attitudes that prevent a person from exercising his or her capabilities.[60] To some extent this agrees with the moral aspects of the social model Wells discusses however it still feels more appropriate that evidence is a crucial aspect of proving disability otherwise without it there would certainly be a possibility of corrupt claims being brought forward and individuals that would take advantage of the changes made to disabled persons in the workplace.

Furthermore Whittle tries to find the middle ground in relation to this issue, he discusses that the concept of impairment is necessary for a definition however this does not mean that legislation shouldn’t be based on the social model.[61] His views showcase safeguards that should be in place the first is that the legislative concept of impairment does not integrate terminology that encourages assessments in relation to the individuals capabilities and that they ignore the social dimension.[62] The second is that the impairment definition should be defined in a comprehensive manner so that the legal systems question is more inclined towards the persons past, present and future surrounding the impairment so that it is a suitable disability for the purposes of the law.[63] It seems this view is more neutral in respect of the law in this area and caters to all aspects and to that extent it can be viewed to benefit the area and Whittle discusses this here effectively because his assumption promotes fairness overall.

To conclude one of the most crucial faults with the law in combating disability discrimination is its reliance on administrative response to it rather than the anticipation of disadvantages. This reactive nature in regards to employment and the workplace is divergent from its pre-emptive equivalent in Schedule 4 to the Equality Act which relates to the premises overall.[64] Furthermore the anticipatory obligation is utilised without the need for engagement from the claimant, as a result this makes the employer apply its thoughts towards either features which impose restraints on the disabled or removing limitations and or modifying them as Lawson elegantly points out.[65] Also this appears more apparent after Ayres and Braith-waite compliment Lawson’s discussion by stating that corporate behaviour is varied to the degree that some will comply with the law out of a social responsibility but some will only do so if it is beneficiary towards themselves.[66]  Moreover by adapting the workplace to the needs of disabled people provides a greater transformative potential for there to be a general state of equality in the workplace overall no matter the state of the individual, by this taking place it would provide much greater scope for the law to benefit the disabled.[67] However the reactiveness of the law in this area is still quite beneficial at ensuring an effective response to a person’s needs which has been determined on a case-by-case basis, if only the law could look at particular provisions which hinder people of disability generally as this would absolutely advance disabled people at work.[68]

Bibliography

Primary sources:

Table of cases:

• Abadeh v British Telecommunications plc [2001] ICR 156, [2001] IRLR 23
• Aderemi v London & South East Railway EAT/0316/12
• Aylott v Stockton-on-Tees Borough Council [2010] IRLR 994 CA
• Banaszcyk v Booker Ltd [2016] IRLR 273
• Clark v Novacold Ltd [1999] ICR 951, [1999] IRLR 318, CA
• Daoudi v Boots Plus SL [2016] EUECJ C-395/15
• Dunham v Ashford Windows [2005] IRLR 608 EAT
• Goodwin v Patent Office [1999] ICR 302, [1999] IRLR 4
• Heinz H J Ltd v Kenrick [2000] IRLR 144, EAT
• Hepple B, Equality: The New Legal Framework, 2nd edition (Oxford, Hart Publishing. 2014) 44
• High Quality Lifestyles Ltd v Watts [2006] IRLR 850, EAT
• Hosking D, ‘A High Bar for EU Disability Rights’ (2007) 36 Industrial Law Journal 228
• Kapadia v London Borough of Lambeth [2000] IRLR 699, CA
• Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, EAT
• Lewisham LBC v Malcolm [2008] UKHL 43 [2008] IRLR 700
• McNicol v Balfour Beatty Rail Maintenance Ltd [2002] EWCA Civ 1074, [2002] ICR 1498
• Morgan v Staffordshire University [2002] IRLR 190, EAT
• Morse v Wiltshire County Council [1998] ICR 1023, [1998] IRLR 352
• O’Neill v Symm & Co Ltd [1998] ICR 481, [1998] IRLR 233, EAT
• Patel v Oldham Metropolitan Borough Council [2010] ICR 603
• Power v Panasonic UK Ltd [2003] IRLR 151
• Rugamer v Sony Music Entertainment [2001] UKEAT 1385_99_2707
• Vicary v British Telecommunications plc [1999] IRLR 680, EAT

Legislation:

• Disability Discrimination Act 1995
• Equality Act 2010

Secondary Resources:

• Ayres I and Braithwaite J ‘Responsive Regulation: Transcending the Deregu-lation Debate.’ (1992) Oxford University Press
• Cabrelli D ‘Employment Law in Context Text and Materials’ (3rd edition Oxford)
• Emir A ‘Selwyn’s Law of Employment’ (12th Edition Oxford)
• Fredman S, ‘Breaking the Mould: Equality as a Proactive Duty’ in N. Countouris and M. Freedland (eds), Resocialising Europe in a Time of Crisis (Cambridge, CUP, 2013) 138
• Gulamhusein A ‘Employment / Discrimination: The last great taboo’ (2010) 160 New Law Journal 1243
• Horton R, ‘The End of Disability-Related Discrimination in Employment?’ (2008) 37 Industrial Law Journal 376
• Hughes P, ‘Disability Discrimination and the Duty to Make Reasonable Adjustments Recent Developments’ (2004) 33 Industrial Law 358, 365.
• Keen S ‘The Equality Act 2010: Direct discrimination & harassment’ (2010) 160 New Law Journal 1329
• Lawson A ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’ (2011) 40 Industrial Law Journal 359
• Lawson A, Disability and Equality Law in Britain: The Law of Reasonable Adjustments (Oxford, Hart Publishing, 2008) 279-84
• Petts J ‘Prognoses for Disability Discrimination Following McDougall’ (2008) 37 Industrial Law Journal 268-7
• Reynold F QC and Palmer A, ‘What Place for Hindsight in Deciding Whether a Claimant Was Disabled?’ [2007] 36 Industrial Law Journal 486
• Roberts P, ‘Caring for the Disabled? New Boundaries in Disability Discrimination’ (2009) Modern Law Review 635, 637-42
• Smith I, Baker A, Warnock O ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015)
• Taylor S & Emir A ‘Employment Law an introduction’ (4th Edition Oxford)
• Waddington L, ‘When it is Reasonable for Europeans to be Confused: Understanding when a Disability Accomodation is “Reasonable” from a Comparative Perspective’ (2008) 29 Comparative Labor Law & Policy Journal 317, 339
• Wells K ‘The impact of the Framework Employment Directive on UK disability discrimination law’ (2003) Industrial Law Journal 32.4 (p253) 2003:253
• Whittle R ‘The Framework Directive for Equal Treatment in Employment and Occupation: an analysis from a disability rights perspective’ (2002) Employment Law Review 27.3 (p303) 2002:323

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[1] Lawson ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’ (2011) 40 ILJ 359

[2] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13^th Edition Oxford 2015) page 336

[3] Ibid 337

[4] Equality Act 2010, s6(1)

[5] Equality Act  2010, s 6. see also: Astra Emir ‘Selwyn’s Law of Employment’ (12^th Edition Oxford) page 129.

[6] The impairment must be real and not imaginary see also: Rugamer v Sony Music Entertainment [2001] UKEAT 1385_99_2707;

[7] Equality Act  2010, s 6(3)

[8] S. Keen ‘The Equality Act 2010: Direct discrimination & harassment’ (2010) 160 New Law Journal 1329

[9] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 339

[10] Ibid 339 see also: Morgan v Staffordshire University [2002] IRLR 190, EAT; Dunham v Ashford Windows [2005] IRLR 608 EAT.

[11] Astra Emir ‘Selwyn’s Law of Employment’ (12th Edition Oxford) page 129 see also: Aylott v Stockton-on-Tees Borough Council [2010] IRLR 994, CA.

[12] Power v Panasonic UK Ltd [2003] IRLR 151.

[13] [2002] EWCA Civ 1074, [2002] ICR 1498.

[14] Azmina Gulamhusein ‘Employment / Discrimination: The last great taboo’ (2010) 160 New Law Journal 1243

[15] Equality Act 2010, Sch 1, para 3.

[16] Goodwin v Patent Office [1999] ICR 302, [1999] IRLR 4; Vicary v British Telecommunications plc [1999] IRLR 680, EAT.

[17] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 340 see also: Goodwin v Patent Office [1999] ICR 302, [1999] IRLR 4.

[18] Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19, EAT see also: Aderemi v London & South East Railway EAT/0316/12.

[19] Equality Act 2010, Sch 1, para 2(1)

[20] Astra Emir ‘Selwyn’s Law of Employment’ (12th Edition Oxford) page 130 see also: Daoudi v Boots Plus SL [2016] EUECJ C-395/15.

[21] [2010] ICR 603

[22] J. E Petts ‘Prognoses for Disability Discrimination Following McDougall’ (2008) 37 Industrial Law Journal 268-7 see also: F. Reynold QC and A. Palmer, ‘What Place for Hindsight in Deciding Whether a Claimant Was Disabled?’ [2007] 36 Industrial Law Journal 486.

[23] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 340

[24] Disability Discrimination Act 1995, Sch 1, para 4(1).

[25] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 341

[26] B. Hepple, Equality: The New Legal Framework, 2^nd edition (Oxford, Hart Publishing. 2014) 44.

[27] See David Cabrelli ‘Employment Law in Context Text and Materials’ (3rd edition Oxford) page 478

[28] See para D5-D7; Banaszcyk v Booker Ltd [2016] IRLR 273.

[29] See D. Hosking, ‘A High Bar for EU Disability Rights’ (2007) 36 Industrial Law Journal 228.

[30] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page  344

[31] Disability Discrimination Act 1995

[32] See Disability Discrimination Act 1995, s 5(1)(a)

[33] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 344

[34] [1998] ICR 481, [1998] IRLR 233, EAT

[35] [2000] IRLR 144, EAT.

[36] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 345

[37] [1999] ICR 951, [1999] IRLR 318, CA.

[38] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 345

[39] Ibid

[40] Ibid

[41] Ibid

[42] [2006] IRLR 850, EAT.

[43] [2008] UKHL 43 [2008] IRLR 700.

[44] See R. Horton, ‘The End of Disability-Related Discrimination in Employment?’ (2008) 37 Industrial Law Journal 376; P. Roberts, ‘Caring for the Disabled? New Boundaries in Disability Discrimination’ (2009) Modern Law Review 635, 637-42; and A. Lawson, ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’ (2011) 40 Industrial Law Journal 359, 364-7.

[45] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 345

[46] Equality Act 2010, s 20. see also: Morse v Wiltshire County Council [1998] ICR 1023, [1998] IRLR 352.

[47] See Clark v Novacold Ltd [1998] ICR 1044, [1998] IRLR 420, EAT.

[48] P. Hughes, ‘Disability Discrimination and the Duty to Make Reasonable Adjustments Recent Developments’ (2004) 33 Industrial Law 358, 365.

[49] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 347

[50] L. Waddington, ‘When it is Reasonable for Europeans to be Confused: Understanding when a Disability Accomodation is “Reasonable” from a Comparative Perspective’ (2008) 29 Comparative Labor Law & Policy Journal 317, 339.

[51] Ibid

[52] A. Lawson, Disability and Equality Law in Britain: The Law of Reasonable Adjustments (Oxford, Hart Publishing, 2008) 279-84, 5.1.

[53] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 342 see also: Vicary v British Telecommunications plc [1999] IRLR 680, EAT.

[54] [2001] ICR 156, [2001] IRLR 23, per Nelson J.

[55] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 347 see also: Kapadia v London Borough of Lambeth [2000] IRLR 699, CA. Cf Pill LJ at 703.

[56] See Equality Act 2010,s 6(4)

[57] Ian Smith, Aaron Baker, Owen Warnock  ‘Smith & Wood’s Employment Law’ (13th Edition Oxford 2015) page 342

[58] Stephen Taylor & Astra Emir ‘Employment Law an introduction’ (4^th Edition Oxford) page 276

[59] Wells, K. (2003) ‘The impact of the Framework Employment Directive on UK disability discrimination law’ Industrial Law Journal 32.4 (p253) 2003:253

[60] Ibid

[61] Whittle, R. (2002) ‘The Framework Directive for Equal Treatment in Employment and Occupation: an analysis from a disability rights perspective’ Employment Law Review 27.3 (p303) 2002:323

[62] Ibid

[63] Ibid

[64] See David Cabrelli ‘Employment Law in Context Text and Materials’ (3^rd edition Oxford) page 505

[65] A. Lawson, ‘Disability and Employment in the Equality Act 2010: Opportunities Seized, Lost and Generated’ (2011) 40 Industrial Law Journal 359, 369.

[66] Ayres, I. and Braithwaite, J. (1992). Responsive Regulation: Transcending the Deregu-lation Debate. Oxford: Oxford University Press.

[67] See also S. Fredman, ‘Breaking the Mould: Equality as a Proactive Duty’ in N. Countouris and M. Freedland (eds), Resocialising Europe in a Time of Crisis (Cambridge, CUP, 2013) 138

[68] David Cabrelli ‘Employment Law in Context Text and Materials’ (3rd edition Oxford) page 505