discrimination

CJEU judgment opens door to backdated claims for unpaid holiday

A recent decision by the CJEU has expanded the scope of the right to carry over holidays to situation where workers are stopped from taking their leave for reasons other than sickness absence. Here’s a look at the case, and why employers need to pay attention.

 The background

Between 1999 – 2012 Mr King Worked for Sash Windows as a salesperson on a self-employed basis, and was paid on a commission only basis. Because he was self-employed, his contact did not state if he should receive annual leave.

In 2009, Sash Windows offered Mr King an employment contract, but he decided to remain self-employed. Mr King took his full annual leave entitlement on some years, but he did not request all of it in a number of other years. The tribunals have accepted that Mr King would have taken more holiday if he had been paid for his leave.

When Mr King reached 65, Sash Windows terminated his contract. Subsequently, Mr King brought claims for age discrimination and unpaid holiday pay under the WTR 1998 to the employment tribunal. The employment tribunal accepted these claims, stating that both the company and Mr King had wrongly believed that he was self-employed when he was, in fact, a worker.

The case

Mr King claimed that he was entitled to holiday pay relating to:

  1. paid leave accrued but untaken during Mr King’s final (incomplete) leave year
  2. holiday which Mr King actually took during the previous 13 years with Sash Windows but was not paid
  3. leave which Mr King was entitled to by virtue of being a worker whilst working with Sash Windows but had not actually taken

With respect to his claim for discrimination and paid holidays, Mr King succeeded in the employment tribunal. The third point above, however, was appealed to the EAT and then the Court of Appeal, with the court of Appeal referring the case to the CJEU.

What this means for employers

The decision is particularly topical given the recent high-profile worker status cases involving Uber and Deliveroo and others. Whilst the CJEU’s decision is not binding on UK employers at this stage, businesses with individuals on contracts without paid holiday will need to keep an eye on this case’s outcome as it could result in further holiday pay being due.

We’ll keep you updated as the holiday pay law moves on. In the meantime, you can click here to contact Alison for more expert advice.

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Walking the catwalk between appropriateness and discrimination

We all know just how important image can be for those who work in the retail and consumer sector. From the look of the menus. to the layout of the room and the staff on a shop floor, each detail counts towards creating the overall brand of each establishment. It even affects the clothes employees wear to work.

Employees’ clothes will largely depend on the general atmosphere and ‘feel’ of the establishment – for example it’s not surprising to see checked-shirt-wearing hipsters working in trendy craft beer pubs, whilst smart clothing brands might expect their staff to reflect the sophistication in their work wear. But where do retailers draw the line between appropriateness and discrimination, and what does the law say on the issue?

In a recent example of what not to do, a London jazz club posted an online job advert looking for ‘extremely attractive’ staff to apply and requested that female applicants ‘must be comfortable wearing heels’. The Equality Act 2010 deems it unlawful for an employer to discriminate against someone because of their gender, so it seems clear that a dress code that places more demands on female employees than their male colleagues will be unlawful. But it’s important to note that this protection extends to the recruitment process.

Insisting on certain dress codes or requiring ‘physical attractiveness’ may leave employers exposed to potential discrimination claims. However, there is a distinct absence of cases where discriminatory dress codes have been challenged, leaving the law unclear.

When it comes to demands concerning appearance, expecting more from a person with a protected characteristic like gender, race, disability and age over another person who doesn’t have that protected characteristic is likely to amount to discrimination.

Although the law around dress code remains unclear, a recent case showed the consequences when companies fail to make reasonable adjustments around an employee’s disability. In a recent case, Abercrombie and Fitch claimed an employee went against their ‘look policy’ after she refused to remove a cardigan which covered her prosthetic arm. The shop then suggested she work in the stock room until the winter uniform came in. Following this Ambercrombie & Fitch was taken to an employment tribunal, and the employee was awarded over £9,000 in compensation from her former employer. This included an award of £7,800 for injury to feelings on the basis that it unlawfully harassed her and failed to make reasonable adjustments to its ‘look policy’, with respect to her disability.

The Government is drafting new guidance for employees around the issue, following campaigner Nicola Thorp’s petition against women being required to wear high heels at work. The petition gathered 152,420 signatures and prompted an inquiry, which heard evidence from a large number of women who recounted being forced to dye their hair, wear revealing uniforms, and constantly reapply makeup. The inquiry concluded that the Equality Act 2010 was not fully effective in protecting workers from discrimination. It is hoped that the new guidance   will provide clarity to employees and employers and help to clear up some of the confusion.

It’s clear here that there is a delicate balance in promoting a strong brand image whilst and discrimination. The consequences can be bad publicity and a loss of custom, as well as huge fines. If in doubt, you can contact Alison for expert advice here.

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How to thrive at work – are you facing a ‘mental health challenge’ in your workplace?

This week ‘Thriving at Work’, an independent report commissioned by the Prime Minister, has been published. Co-authored by Paul Farmer (Chief Executive of mental health charity Mind) and Dennis Stevenson (former HBOS chair), the report sends a clear message to employers that a change in attitude is needed. Specifically, it calls on the Government to adopt 40 recommendations – including legislative reform.

What does the report say?

Claiming that the UK is ‘facing a mental health challenge at work, that is much larger than we had thought,’ the report points out that:

  • up to 300,000 people with long-term mental health issues leave their jobs every year (it is noted, however, that this statistic could include the same individual twice if they move around employment);
  • around 15% of employees have symptoms of an existing mental health condition; and
  • the UK economy spends around to £99bn every year due to employees that are ‘less productive, less effective, or off sick’ because of poor mental health.

Paul Farmer highlights the ‘crucial’ role that employers must play, with the report alluding to the fact that ’employers are perhaps able to have the greatest impact and scope to make an impact’, being in the unique position of being able to ‘create a positive and supportive workplace culture themselves free from stigma’.

As well as this, the report recommends that employers adopt what are described as ‘mental health core standards’ – a framework for a set of actions which can be implemented across all workplaces ‘quickly’ and at little or no cost. These mental health core standards emphasise the need for:

  • producing, implementing and communicating a mental health at work plan;
  • developing mental health awareness among employees;
  • encouraging open conversations about mental health and the support available;
  • ensuring employees have a healthy work-life balance and opportunities for development;
  • promoting effective people management through line managers and supervisors; and
  • routinely monitoring employee mental health and wellbeing.

Does the size of the company matter?

In short, no… but the report recommends an enhanced set of standards for employers with over 500 employees, as well as greater transparency and tailored in-house mental health support from employers who ‘can and should do more to lead the way.’

It also asks the Government to consider amending legislation and guidance, such as the Companies Act. This would encourage employers to report on workplace mental health through channels such as their website.

Employers will also want to keep a keen eye on recommendations in the report for the government to consider legislative change ‘to enhance protections for employees with mental health conditions, particularly fluctuating mental health conditions’ and calls for clarification of the role of employers in providing reasonable adjustments. The report does not limit the potential for legislative reform, recommending that the government considers ‘what more it can do to require employer compliance with existing equalities and employment laws’.

What about the self-employed?

There’s no denying that the working world is getting ever more flexible. That’s why it’s good to see this report consider the changing nature of many workplaces, with many people now employed by the so-called ‘gig economy.’ Because of this, the authors of the report have stated that they have sought to ensure that their recommendations can be adopted by all companies – regardless of the size or type of workplace. Similarly, they have considered the findings of the recent Taylor Review of Modern Working Practices, which states that there should be ‘good work’ for all. For online platforms with large reach amongst self-employed workers, the report recommends that they make connections with NHS-approved health and wellbeing support to provide advice that can be accessed by those working through their technology.

What else does the report recommend?

Whilst some of the report’s 40 recommendations are focused on the public sector, the vast majority is likely impact on all UK businesses in some way. In addition to those mentioned above, other recommendations include:

  • specific recommendations for industry groups, professional bodies, insurers and workplace regulators to all support employers on tackling workplace mental health;
  • calls on the Equality and Human Rights Commission to take a more proactive role in monitoring and taking action against employers that discriminate against individuals on mental health grounds, and the Health and Safety Executive to revise its guidance in order to raise employer awareness of their duty to assess and manage work-related mental ill-health;
  • the formation of a mental health online information portal, co-produced by the voluntary, public and private sectors, to promote best practice and enable employers of all sizes to implement the mental health core and enhanced standards;
  • calls on the government to align the fragmented occupational health and practical support available currently from Access to Work, the Fit for Work Service and other NHS services to create an integrated in-work support service to better support the needs of those with mental illness, and other physical health conditions and disabilities; as well as protecting and promoting the current tax relief for employers to invest in the mental health of employees whilst exploring alternatives to potentially incentivise employers to implement the mental health core standards; and
  • a recommendation for public bodies to encourage their suppliers to implement the mental health core standards.

What’s next?

Whilst the report is simply making ‘recommendations’ at present, employers need to start taking action. The Prime Minister has made it clear that mental health is a priority on her agenda and the government is said to be considering the legislative changes suggested.

Aside from the report, mental health is a rising issue  – and one that employers need to tackle right now. Recently, ACAS issued guidance on mental health in the workplace for employers and, as the Prime Minister has commented, ‘it is only by making this an everyday concern for everyone that we change the way we see mental illness, so that striving to improve your mental health – whether at work or at home – is seen as just as positive as improving our physical well-being’.

If you’re affected by any of the issues raised above, you can contact Alison for expert advice here.

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Does long-term sick leave mean termination of employment is unfair?

The UK Court of Appeal has considered if an employer was discriminating against its employee who had been on long term sick leave for more than 12 months by terminating her employment.

The background

In the case O’Brien v. Bolton St Catherine’s Academy, a teacher employed by the Respondent school was assaulted by a pupil in March 2011. Consequently, the teacher suffered serious stress and was on sick leave for over a year.

The teacher attempted to return to work in December 2011, but she was unsuccessful. Following this she had not returned to work, and in January 2013 the school terminated her employment.

The teacher lodged an internal appeal, which was heard in April 2013. The teacher produced a ‘fit for work’ note, as well as additional medical evidence, at this hearing. However, the panel upheld the dismissal on the grounds that the medical evidence was inconsistent, the prognosis was not good, and her return was uncertain. As a result, the teacher claimed against the school for disability discrimination.

The outcome

The UK Court of Appeal considered it unreasonable that the school had disregard the teacher’s  medical evidence at the internal appeal hearing. Because the school already had endured the teacher’s absence for 15 months, it was considered unreasonable for the school not to wait a few months longer, so that the school could obtain and assess its own medical evidence.

The court felt that the school should consider and provide evidence of the impact of the teacher’s prolonged absence (which it had not done to this point). Therefore, the court felt, the school’s dismissal of the teacher constituted disability discrimination. The court did acknowledge that this was a borderline ruling due to length of absence, and the nature of evidence of when the teacher would be fit to return to work.

What can we learn from this?

Although employers are not expected to wait forever for an employee to recover from illness, there are a number of steps they should take to prevent any action being considered as unfair.

  • Written records of any disruption caused to the business of the employers arising from the employee’s absence should be documented.
  • Employers should assess any medical evidence produced by the sick employee carefully, including any new evidence which may be available during the dismissal process (including any internal appeal hearing).
  • Additionally, employers should consider the nature of the illness, the likely length of continuing absence, and the need of the employers to have done the work which the employee was engaged to do.

For more expert employment advice, you can contact Alison here.

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Watch your mouth – how employers can be discriminatory without realising it

Discrimination can come in many forms, but can be much subtler than you realise. When it comes to off-the-cuff comments, employers need to be careful of how things come across to other parties. This was the case with a recent claim made by a 59-year-old employee who was told she’d be more suited to a ‘traditional’ office. So where did the employer go wrong?

The background 

In February 2015 Ms Gomes (G) began working as an administration assistant for Henworth, which traded as Winkworth Estate Agents. G had been working for another agent in the Winkworth franchise since 2009, and had been transferred to Henworth from there.

A year later, in February 2016, G had a performance review with the company’s lettings director, who informed her that she needed to be more careful with her work. The meeting upset G, and she subsequently spoke to her line manager who spoke to Graham Gold, one of the directors.

Shortly after this G met with Gold, who told her that he felt she had not been paying attention to new methods of working, and had become preoccupied with an old piece of software that was now rarely used by the company.

A month later, in March 2016, Gold called G in for another meeting and told her: “This marriage isn’t working.” G claimed that, when asked about this comment, Gold said that G had typed and sent an erroneous letter to a solicitor, including referring to the deceased in question as ‘Mrs’ rather than ‘Mr’. Gold stated that, subsequent to this, a note would be placed on her performance record.

Additionally, Gold then told G she would be “better suited to a traditional estate agency” which G interpreted as Gold alluding to her being too old for that particular office. When G asked Gold what he meant by his comment, he suggested she “sleep on it and decide what you want to do,” which G interpreted as Gold recommending she consider leaving the company. According to G, at the time of the meeting she was planning to stay with the business until retiring at 65.

Not long after the meeting, G took sick leave for work-related stress and filed a grievance against Gold. The outcome of this grievance concluded that G should have more training opportunities, as well as stating that the original meeting with Gold had been carried out in an unsatisfactory manner. Gomes was not pleased with this outcome, however, and not only appealed but also tendered her resignation.

The tribunal allowed G’s claim for age discrimination, stating that the original comment ‘better suited to a traditional estate agency’ was unlikely to have been said to a younger employee, and was therefore a direct reference to her age. As well as this, the tribunal also allowed G’s claims for age-related harassment and constructive unfair dismissal.

The person put in charge of handling G’s grievance was also called into question, as they had compromised the meeting’s impartiality by allowing Gold to be present – despite Gold being the subject of the complaint.

In conclusion

This case is a harsh reminder that employers need to be careful with what they say to, or about, their employees. An age discrimination claim can arise from comments that allude to an employee’s age, even if it is not directly referred to – so think before you speak.

If you would like to discuss this within your organisation, please contact Alison.

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Tribunal awards – calculating a week’s pay

In a recent case the Employment Appeals Tribunal ruled that a week’s pay should include employer pension contributions, rather than just basic pay, for calculation of compensation for claims under the Employment Rights Act 1996.

Let’s take a look at the facts.

Ms Drossou (D), who worked for the University of Sunderland, was dismissed on the grounds of an irretrievable breakdown in working relations, of which the University claimed D to be the main cause. Subsequently, D brought a claim of unfair dismissal that was eventually upheld by the Tribunal.

As a result, the EAT ordered compensation from the University, calculating a week’s pay by including the employer pension contributions. On the normal grounds that payments are not paid to the employee but into the pension fund, this decision went against the longstanding practice of excluding employer pension contributions from the calculations of a week’s pay.

The Tribunal felt that this deviation from standard practice was necessary, and said that the law under the Employment Rights Act 1996 (‘the ERA’) does not state that the amount payable by the employer has to be payable to the employee (i.e. it could be payable to a third party such as a pension provider). Additionally, the EAT stated that “remuneration” in the context of the ERA means a reward in return for services, and employer pension contributions are no less a reward for service than basic pay. The University was not satisfied with the ruling, but when it appealed to the EAT the Tribunal’s decision was upheld.

So, what does this mean for employers?

For the time being (at least until we see whether this decision is appealed) employers need to increase their calculations in accordance with the potential value of claims. Employers facing unfair dismissal claims need to be careful. If the claimant’s base salary is below £80,541 – the current statutory cap for unfair dismissal compensation – the calculation of a week’s pay becomes highly relevant. Where the employee earns less than the statutory cap on a week’s pay (currently £489), the basic award will also be increased – as well as all other awards based on the ERA definition such as the eight-weeks’ pay for a flexible working rules breach.

But, more importantly, the decision may impact protective awards. If employers fail to inform and consult under TUPE or, in a redundancy process, under the Trade Union and Labour Relations (Consolidation) Act 1992, then they could face large increases in the total compensation payable. The final amount will depend on the number of affected employees, the generosity of the pension provision and the size of protective award made up to the 13-week maximum. But if each employee has a 10% employer pension contribution and they all get an award of 13 weeks, then the total payable increases considerably.

For more information on this please contact Alison.

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President of the Employment Tribunals announces increase in the Vento Bands

Employers have been hit with a timely reminder that they need to make sure they’re taking all possible steps to prevent workplace discrimination. After a recent consultation, the President of the Employment Tribunals has announced that, in the event that they suffer from workplace discrimination, employees can now receive higher compensation for ‘injury to feelings.’

So, what’s it all about?

Compensation for ‘injury to feelings’ is split into four categories – known as Vento Bands – and these vary depending on the discrimination’s severity. From 11 September 2017, the increased Vento bands will be:

  • £800 to £8,400 for less serious cases;
  • £8,400 to £25,200 for serious cases; and
  • £25,200 to £42,000 for the most serious cases.

As well as this, the Employment Tribunal can award over £42,000 in exceptional cases, but it’s still unclear as to how it defines this. Most important, however, is that compensation under this category could be unlimited.

Stick and stones may break your bones, but, in this case, words can definitely hurt. Employers need to stay up to date with their equal opportunities and anti-bullying and harassment policies – as well as implementing regular diversity training – if they’re going to avoid costly discrimination cases.

For more information or help with any Employment Tribunal matters please contact Alison.

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Pensions update: Was a disabled employee treated unfavourably?

In Williams v The Trustees of Swansea University Pension & Assurance Scheme and another the Court of Appeal stated that a disabled employee was not treated unfavourably (and therefore discriminated against) when his enhanced pension on ill-health retirement was based on the salary he earned when working part time due to his disability, rather than his full time salary.

Background

Mr Williams, the employee, suffered from Tourette’s syndrome, obsessive compulsive disorder and depression. Before eventually taking ill-health retirement (at 38) he reduced his hours with his employer, Swansea University, in order to better cope with his condition and his pay was reduced accordingly.

Mr Williams was allowed, by the University, to take his accrued pension benefits immediately and without any actuarial reduction for early receipt, rather than having to wait until his normal pension date nearly twenty-nine years later. This meant he was treated as though he had accrued nearly twenty nine years further pensionable service and his benefits were advanced.

Mr Williams brought a disability discrimination claim at the Tribunal under s 15 of the Equality Act 2010. Mr Williams argued that, by using his actual part time salary rather than a full time equivalent, the calculation of the enhancement to his benefits amounted to “unfavourable” treatment and therefore unlawful discrimination.

In the initial hearing the Tribunal upheld his claim. The University then successfully appealed to the EAT. Following this Mr Williams appealed to the Court of Appeal.

The Court of Appeal agreed with the EAT because:

  • under the pension scheme rules the only employees entitled to retire early and to receive an enhanced pension were those who retired through ill-health and who were necessarily disabled within the meaning of the Equality Act 2010;
  • Mr Williams had been treated advantageously in comparison to non-disabled colleagues and there is no authority for the proposition that a disability discrimination claim can succeed simply because an individual thinks he should have been treated better;
  • that Mr Williams was working part-time hours because of his disability could not be enough to require the employer to justify the treatment; and
  • there is no authority for the proposition that a disabled person who is treated advantageously because of their disability, but not as advantageously as a person with a different disability, has a valid claim that they have been treated “unfavourably”.

This decision confirms that, even if it could have been more advantageous, treatment that is advantageous does not amount to unfavourable treatment.

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The Supreme Court has ruled that employment tribunal fees are unlawful

The government suffered a heavy defeat on 26th July after the Supreme Court ruled that employment tribunal fees are unlawful and the government will now have to repay up to £32m to claimants, relating to claims dating back to April 2013.

Brought forward by the Unison union Lord Reed, the judgment said that the fees were unlawful because of their effects on access to justice. Introduced in 2013 and costing between £390 and £1200, the fees have been said to prevent access to justice for workers unable to fund their case.

“The making of the Fees Order was not a lawful exercise of those powers, because the prescribed fees interfere unjustifiably with the right of access to justice under both the common law and EU law, frustrate the operation of Parliamentary legislation granting employment rights, and discriminate unlawfully against women and other protected groups.”

While the fees were brought in by the government to reduce the number of malicious and weak cases, after 3 years there had been a 79% reduction in cases brought forward.

Discrimination cases cost more for claimants because of the complexity and time hearings took. The Supreme Court found this was indirectly discriminatory because a higher proportion of women would bring discrimination cases.

Unison general secretary Dave Prentis has said: “This is absolutely a tremendous victory, it’s probably the biggest victory of employment rights in this country.”

So what now?

In order to deal with this massive backlog of repayment and claims the Presidents of the Employment Tribunals have issued Case Management Orders.

The Order states that all cases and applications arising from the Unison case, or applications for reimbursement of fees, shall be made in accordance with administrative arrangements to be announced by the Ministry of Justice and HMCTS shortly… We wait to see what happens next!

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Religious Festival holiday rejection was not considered discriminatory

The EAT recently upheld a tribunal’s rejection of a claim that a Roman Catholic was not discriminated against when he was not allowed to take five weeks’ leave for a religious festival.

Gareddu v London Underground Ltd – What happened?

For a number of years Mr Gareddu, a Roman Catholic from Sardinia, had been allowed by his employer, London Underground, to take five consecutive weeks’ annual leave in order to visit his family and attend religious festivals. When his manager changed in 2015, his application for the five weeks’ leave was rejected and he was told he could take a maximum of three weeks’ time off to attend the festivals.

On learning that his application had been rejected, Mr Garredu raised a grievance with his employer, arguing that it was religious discrimination. This grievance was rejected on the grounds that the London Underground did not believe that his attendance was required in Sardinia for five weeks every summer. The employer argued that attending the festivals was a personal choice, rather than a strict requirement of faith.

The EAT agreed, believing his motivation was to spend time with his family, not to attend the festivals. They proved this by finding evidence that he attended only nine of a possible 17 religious events.

What was the verdict?

According to the EAT, the tribunal “simply assessed whether or not the asserted requirement to attend the series of festivals for a five-week period was genuine” and then “the tribunal found that the true or genuine reason for wanting a five-week period was not the claimant’s religious beliefs or their manifestation but was his wish to be with his family.” In conclusion, it was decided that the grounds for the annual leave rejection were not discriminatory.

In a nutshell…

If an employee requests extended annual leave on the basis of religious commitment and it is proven that they have alternative, more dominant, motives for the leave, it may not be seen as religious discrimination for the leave to be rejected.

For more information, visit http://79.170.40.162/enlightenhr.com or contact Alison Benney:

alison@enlightenhr.com

Tel: 01803 469466

Mobile: 07967221595

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Permanent employees can take priority over agency workers for jobs

The Agency Workers Regulations 2010, specifically Article 6, state that temporary agency workers are entitled to equal treatment as permanent employees as regards to the fundamental terms of employment. Article 6 also requires agency workers to be informed of any internal vacancies at their current place of work to give them the same opportunity as other workers. However, a recent Employment Appeal Tribunal case asked whether this Article is concerned only with the provision of information or, whether in fact, it gives temporary agency workers an equal footing with permanent employees when applying for internal vacancies.

Coles vs. Ministry of Defence

The MoD employed both permanent and temporary agency workers at its organisation in Wales. When restructuring, it placed 530 permanent employees in a redeployment pool. While they advertised internal vacancies to all workers, permanent employees were given priority consideration. Coles, a temporary agency worker, claimed that the prioritisation denied him the opportunity to apply and that this was a breach of Article 6.

Tribunal and EAT

The employment tribunal disagreed and Coles appealed. The Employment Appeal Tribunal also disagreed and his appeal was dismissed. They argued that Article 6 only refers to providing equal information about vacancies, it does not prevent permanent employees from being given preferential treatment.

“Same Opportunity”

The biggest confusion in this argument is in the interpretation of staff being given the ‘same opportunity’. The EAT have stated clearly that this means that the information relating to a vacancy must be given to temporary agency workers and permanent workers in an equally useful form at an equally useful time. Article 6 does not prevent any priority consideration or alter the terms on which employment might be offered.

In a nutshell

Provided that employers give ALL workers the same information about internal vacancies in an equal fashion, they are within their rights to prioritise vacancies for existing permanent employees.

For more information about this or any other HR matter please contact Alison directly.

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