Disability, discrimination, dismissal
01 March 2019
This article was featured in the March 2019 issue of the magazine.
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Martin v University of Exeter
In Martin v University of Exeter, the Employment Appeal Tribunal (EAT) was tasked with determining whether an employee’s medical condition met the necessary requirements to be considered a disability.
Martin began displaying symptoms of a stress related condition in June 2015 and was unable to attend work from July. An occupational health (OH) report was arranged which in August 2018 concluded that the employee was not disabled as the adverse effects of his condition had only been present for two months. For a condition to be classed as a disability it must be ‘long term’, meaning it must have been ongoing for at least twelve months or ‘likely’ to last at least that long.
In September 2015, Martin’s general practitioner (GP) diagnosed post-traumatic stress disorder (PTSD). He remained off work. In May 2016 another OH report was performed, which concluded that Martin was now disabled because the adverse effect he was suffering was likely to last at least twelve months. Following this, Martin raised a claim for disability discrimination dating to 2015.
After reviewing available evidence the Employment Tribunal (ET) dismissed the claim deciding that Martin could only be considered as being disabled from April 2016, as there was no evidence before this date which could have ‘necessarily predicted’ he would have had a disability by that time. However, as Martin had displayed these symptoms for nine months by April 2016, the ET determined it was reasonable to conclude they were likely to last for twelve months at this point, therefore satisfying the requirement for a disability then.
Martin appealed claiming the ET had failed to properly apply the correct test set out in SCA Packaging v Boyle for establishing the likelihood of a disability. This test explains that the word ‘likely’ should be defined as something that ‘could well happen’, whereas the ET had used the words ‘necessarily predict’ when examining this case.
However, the EAT dismissed the appeal, referring to the case Royal Bank of Scotland v Morris which stated the burden of proving disability lies on the claimant. The EAT held that the ET had used the word ‘necessarily’ in the context of the predictive nature of the exercise they were undertaking and was satisfied the correct decision had been made based on the evidence available.
This case should serve to remind employers that staff showing signs of ill-health may qualify as being disabled at a later date. Additionally, employees do not necessarily have to be adversely affected by a condition for twelve months to qualify as being disabled, so long as they can prove that this is likely to last for this length of time.
In this case, the employer took the necessary steps to complete several OH reports in order to get a complete assessment of the employee’s condition. This is a good example of how carrying out the correct procedure when dealing with staff on long-term sickness could prove decisive in any tribunal disputes.
...staff showing signs of ill-health may qualify as being disabled at a later date
Jayeola v Commissioners for HMRC
In Jayeola v Commissioners for Her Majesty’s Revenue & Customs (HMRC), the ET was asked to assess whether an employer’s response to a complaint of race discrimination was in itself discriminatory.
The employer, HMRC, which had a zero-tolerance policy towards race discrimination, routinely hired cleaning staff through third party contractor G4S. A written agreement between the two parties stated that all cleaners required HMRC’s approval to work there and that G4S were obliged to deal directly with any complaints regarding their conduct.
It was alleged that on one occasion, during a blackout, a G4S cleaner had made a racist remark to Jayeola, who was of Nigerian descent, stating “It’s a good thing you’re wearing a white shirt or I wouldn’t have seen you”. Jayeola took time off due to stress following this, explaining that he was suffering from poor mental health due to a ‘racist culture’ that existed in the workplace. He also referred to three separate acts of discrimination that he had experienced since he started his position.
A senior HMRC manager escalated Jayeola’s complaint to G4S, which after a delay of two months confirmed that the cleaner had been verbally reprimanded and that no further action was required. On being informed that if he chose to return to work there was a chance he would come into contact with the cleaner again, Jayeola argued that to facilitate his return the cleaner should either be dismissed or moved to a different location in the building. However, the manager was informed by the human resources (HR) department that they could not request such an arrangement. Although alternative arrangements were suggested Jayeola proceeded to bring a claim for race discrimination to an ET, arguing that his claims had continually not been considered or responded to.
The ET found that Jayeola had suffered race discrimination in accordance with section 13 of the Equality Act 2010, believing he had suffered less favourable treatment on account of his race. The ET found that the employer could and should have taken additional steps to assist the employee, and likely would have done so if he was white.
The ET outlined that the employee’s manager had failed to conduct their own investigation into the matter and had made no effort to discover if the request to relocate the cleaner had been made to G4S or explored this potential solution further.
Decisively the ET explained that the employer was unable to provide satisfactory evidence to demonstrate they had properly followed their own equality policy having allowed the G4S cleaner to return to the same floor as Jayeola despite the risk of further discrimination. The employer subsequently failed to prove that this treatment was not an act of discrimination based on the employee’s race.
This decision sends an important message that it is not enough to simply have a zero-tolerance policy in place for discrimination and that employers will need to ensure they follow this in practice. Even though there is no explicit requirement to protect staff from third-party harassment, employers will still need to provide evidence that they have taken all suitable action to avoid a claim, as a lack of action could be considered discriminatory, particularly if this is not consistent with previous behaviour or in line with their policies.
...a tribunal will consider the entire redundancy process...
George v London Borough of Brent
In George v London Borough of Brent, the EAT had to decide if the employer had acted fairly by refusing to provide a trial period to an employee, who had been placed in an alternative role, before proceeding with a redundancy dismissal.
The employee had worked as a library manager for eight years when in 2011 her employer was faced with the prospect of funding cuts. The employer closed half of its libraries and reduced the number of library managers from six to two. The current managers were invited to apply for the two new library manager roles, but George was unsuccessful in her efforts and therefore subject to the employer’s redundancy procedure.
As part of this procedure, efforts were made to find the employee a suitable alternative role. She was offered a role as a customer service officer and, although the salary for this role was lower than her previous one, it was agreed her pay would be maintained for twelve months.
George was told in a meeting that she would not be offered a four-week trial period she had requested in order to ‘get to grips’ with her new role and the fact that this was based in a different location to her previous position. George declined the job offer and was made redundant, following which she lodged a claim for unfair dismissal.
The ET considered whether George was entitled to a trial period in her new role and whether the employer’s decision to dismiss her had been fair or unfair. For their part the employer conceded that, under their managing change policy and procedure, there was a contractual entitlement for staff in new roles to receive a four-week trial period. Therefore, their refusal of this right breached the employee’s contract of employment.
When assessing the fairness of the dismissal, the ET concentrated on the employee’s conduct. They found that the decision to dismiss was ultimately fair, as she refused to raise any concerns with the HR department about the requirements of the new role, despite being advised to do so if she had any issues.
On appeal, the case was remitted back to the ET to consider whether the breach of contract made the dismissal fair or unfair. However, despite the employer’s admission that they had wrongfully refused to offer a trial period, the ET ruled this was not important and therefore the decision to dismiss was fair. They based this on George: being familiar with the duties of her new role having covered them on occasion in the past; knowing where she would be based having worked there in the past; knowing her salary would be preserved; and knowing the manager to whom she would report.
On appeal the EAT highlighted that the ET had failed to take into account that George expressed her wish to undertake a trial period to see how she could operate within the new role and if she could be managed by someone whom she had previously managed. The EAT decided that the ET had failed to properly assess the importance of the trial period from the employee’s perspective and therefore could not properly address whether the dismissal was fair on this basis. As a result, this case was remitted to the ET to correctly determine the fairness of the dismissal.
Although we await a definitive decision on this matter, the guidance from the EAT appears to suggest that a failure to provide the contractual trial period would render the redundancy dismissal unfair. Employers are encouraged not to withhold an employee’s legal right to a trial period, even where there is no contractual obligation to do so, and this is a reminder that a tribunal will consider the entire redundancy process when determining whether a dismissal is fair or not.