Disability, privacy, discrimination
01 September 2019
This article was featured in the September 2019 issue of the magazine.
Nicola Mullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Baldeh v Churches Housing Association
The Employment Appeal Tribunal (EAT) was tasked with deciding whether the revealing of a disability during a dismissal appeal hearing gave the employer actual or constructive knowledge of a disability.
TtThe claim centred around section 15 of the Equality Act, which looks at discrimination arising as a result of a disability, and the EAT had to consider if the employer did not know, and could not have reasonably been expected to know, that the employee was disabled.
The employee had reached the end of her six-month probation period. During this time, concerns had been raised about her conduct in a number of supervision sessions. The employee was invited to a probationary review meeting, where she was informed that there had been several complaints regarding the way she communicated with her colleagues and her apparent lack of boundaries with service users. Particular areas of concern were that the employee had loaned money to a service user without permission and had breached data protection laws by not maintaining confidentiality of service user information.
Following the meeting, the employee was dismissed as she had been deemed not to have made ‘satisfactory progress during her probation period’ but was told she could appeal against this decision. During the appeal hearing, the employee disclosed for the first time that she had depression, which had a long-term impact upon her behaviour and wellbeing. She outlined that her condition made her behave unusually, make unguarded statements and suffer from short-term memory loss.
Her appeal was rejected, but the employee later brought claims to the Employment Tribunal (ET), arguing that the dismissal amounted to unlawful discrimination arising in consequence of a disability. However, the ET dismissed her claim, finding that the organisation had no actual or constructive knowledge that she was disabled at the time of her dismissal, and any later knowledge of a disability was irrelevant.
The ET outlined that no evidence had been presented that showed her behaviour arose ‘in consequence’ of her disability and that there was nothing to suggest this was anything other than a personality trait. They found there were other substantial reasons for the dismissal not related to her style of communication and decided that the dismissal was justified.
However, the employee appealed arguing that the initial ET made some ‘serious errors’ in its judgment. She argued that there was sufficient evidence to suggest her depression had caused the relevant behaviour which led to her dismissal and the EAT agreed that no effort was made by the initial ET to gather any further evidence. The EAT also explained that the ET did not do enough to prove that the dismissal was a proportionate means of achieving a legitimate business aim and failed to take into account the prejudice involved in dismissing the employee under the circumstances. Therefore, the decision to dismiss the employee was deemed as discrimination arising as a result of a disability.
This case offers a timely reminder that employers may still be liable for disability discrimination claims if the employee hasn’t disclosed disability or does so at a later stage in their employment. It also highlights the importance of an appeal in any dismissal situation and specifically that any new evidence presented at this stage must be investigated thoroughly before a final decision is made.
... decision to dismiss the employee was deemed as discrimination...
Garamukanwa v UK
This case, which involved the European Court of Human Rights (ECHR), focused on whether criminal evidence used by an employer as part of a disciplinary procedure breached an employee’s right to privacy under Article 8 of the European Convention of Human Rights.
The employee had recently been involved in a personal relationship with his colleague, Ms Maclean, which had come to an end. Not long after this, the employee emailed Ms Maclean and a junior staff member, Ms Smith, voicing concern that they had now entered into a separate personal relationship. The organisation was made aware of this behaviour and the employee was duly informed that this was inappropriate.
Despite this intervention, the employee proceeded to subject both individuals to a campaign of harassment over the next ten months, which included sending further insulting emails about their relationship. The police were eventually informed and proceeded to conduct a criminal investigation into the matter. Evidence was collected as part of this, which included details of some of the email accounts that had been used in the campaign.
The employer decided to rely on this police evidence as part of a disciplinary procedure and ultimately chose to dismiss the employee for gross misconduct. The employee unsuccessfully appealed against this decision, and so sought to bring claims to the ET.
The employee brought numerous claims, including unfair dismissal. He argued that the decision to dismiss him had breached Article 8 as it had been made through using evidence that related to his private life. It is worth noting that Article 8 specifically states that everyone has the right to respect for their private and family life, their home and their correspondence. It outlines that there shall be no interference by a public authority with the exercise of this right, except as is necessary in the interests of a number of specific areas. However, the ET dismissed his claim, deciding that Article 8 did not apply as the emails concerned work-related topics and had been distributed directly to work email addresses.
The decision was appealed to the EAT, with the employee arguing that the employer had relied on private evidence to dismiss him and that he had a reasonable expectation that this evidence would remain private. The EAT dismissed this argument, finding that there was no reasonable expectation of privacy as he should have expected the victims would share this information with the employer given the previous warnings about his conduct. It was also added that even if Article 8 was engaged, the decision to use this evidence to dismiss would still be justified in order to protect the welfare, health and safety of the organisation’s employees.
The employee finally chose to argue this case to the ECHR; however, this was dismissed once more. In doing so, the ECHR outlined that there was no reasonable expectation of privacy in respect of the material provided by the police, as by the time of the investigation the employee had already been warned about the inappropriate nature of sending personal emails on the topic. Therefore, he could not reasonably expect that any additional evidence which outlined that this behaviour had continued would remain private.
This case reminds employers that disputes around an individual’s right to privacy will always depend upon the particular circumstances of the case and the evidence concerned. However, employers will be in a more advantageous position where any personal correspondence consists of work-related topics.
...no evidence submitted that the side effects made using it unacceptable or unworkable...
Mart v Assessment Services Inc.
In this case the EAT was required to judge whether the side effects brought on by the treatment of an employee’s visual impairment ought to be considered when assessing their disability.
As per the Equality Act 2010 (‘the Act’), individuals will qualify as disabled if they have a physical or mental impairment, which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. For the purposes of this case, it is worth noting that Schedule 1 paragraph 5 of the Act specifically provides that individuals who are visually impaired will not be classed as disabled if their condition can be corrected by spectacles, contact lenses or other prescribed ways.
The employee suffered from diplopia, which is commonly referred to as ‘double vision’ and causes individuals to see two images of a single object. As a result, she used contact lens that counteracted the symptoms of the condition but visibly blacked out sections of her eye and restricted her peripheral vision.
The employee brought a claim for discrimination on the grounds of disability, arguing that the side effects of the contact lens meant that her diplopia was not corrected and that she was therefore still disabled.
It was therefore up to the ET to determine whether the employee qualified as disabled under the Act. However, the ET dismissed her claim, finding that because her diplopia could be corrected by the use of a contact lens, it did not amount to a disability.
The employee appealed, feeling that the initial ET had taken too narrow a view of the situation. Despite this, the EAT also dismissed her claim, explaining that whether an impairment was ‘correctable’ for the purposes of the Act would always be decided on a ‘case by case’ basis.
In this situation, it needed to be considered whether the impairment was resolved and if it was legitimate to take into account the adverse consequences of resolving it. Although the EAT did accept that the employee suffered a loss of peripheral vision to some extent, they could not find this was so significant that the lens was unable to provide a solution to the diplopia. The EAT ultimately concluded that the lens had corrected the diplopia, and there was no evidence submitted that the side effects made using it unacceptable or unworkable.
It is worth noting that the employee did not plead any of the other conditions that she suffered from as a result of using of the lens, which were facial disfigurement, anxiety and depression. However, the EAT judge’s comments stated that had the employee decided to present her claim on the basis of facial disfigurement, then the impact of the lenses could have been considered as part of the claim.
The findings of this case suggests the legal position on needing glasses or contact lenses to correct a visual impairment may not be as clear cut as previously understood. Although the employee was unable to qualify as disabled in this instance, this does not necessarily mean that others will be unable to do so in the future and tribunals may conclude that the impairment has not been corrected if the method used to correct it is the cause of significant side effects.