In a discrimination case (specifically a direct discrimination complaint) one of the defence tactics an employer can deploy is the so called bastard defence; this can be paraphrased as an admission that the employer is shit and unfair to all its staff but the defence rests on the assertion that it is equally bad to everyone. And, because of that they cannot have treated a worker less favourably (a requirement a proving direct discrimination) than any other worker because everyone was treated equally badly. It is a subject that has been considered previously on this website.
In a recent case Alpha Omega Security Ltd appear to have adopted something like the bastard defence appears to have been deployed by the Mr Lawton, the Managing Director, in evidence. In Pointon v Alpha Omega Security Ltd (2021) the claimant pursued claims of constructive unfair dismissal and numerous disability discrimination complaints (although not direct discrimination).
Even aside from the issues in the case it looks as though Alpha Omega Security may not treat their staff well. According to the tribunal the claimant, Mr Pointer, was effectively the the Managing Director’s “right hand man” and yet even despite his seniority, was paid no sick pay, was required to do regular overtime which was unpaid in the contract and was paid a “very low” hourly wage – that is before we even get the the issues behind the alleged dismissal.
The claimant was disabled by reason of a cancer of the kidney and was undergoing a punishing treatment regime and, understandably, experienced a marked effect “mentally on account of the stress and anxiety the Claimant held about the uncertain future that lay before him.” That diagnosis came in August 2016 and the managing director was told of the diagnosis.
There was an agreement that the claimant be off for a period for an operation but there was some dispute over the terms, with the claimant taking a financial hit as a result of the treatment (albeit not as large a hit as a strict reading of the contract allowed).
The real issue began after the return to work in November 2016 onwards. Working with the disability in what was always a high pressure role understandably caused the claimant fatigue. Because of fatigue, the claimant did not attend a management social function over the period for which the claimant was criticised. The claimant was struggling to fulfil all the job requirements at this time and this was a source of regular criticism by the MD, with complaints this was causing the MD more difficulties. As the Tribunal found
this feature did have the effect of making the Claimant feel guilty about his inability to work at full capacity and exacerbated his stress. We also have no doubt that that the statement was true, but the effect of such comments was to place pressure on the Claimant to go beyond that which his health allowed.
Thereafter there was an improvement in health and an all clear was given in September 2017 but a return to full duties was difficult. A new senior hire was made without any consultation with the claimant which the claimant legitimately perceived to be a replacement (although in fact it was not).
The working relationship up to this point was certainly strained but things deteriorated after Mr Pointon reported on 15 January 2018 when Mr Pointon received the news that the cancer had returned and that his prognosis “was poor”. Mr Pointon informed the MD of this on the same time and told him he would not be at work the following day as he was travelling to tell his parents of the sad news. In short order:
- The MD told Mr Taylor (the new hire) about the diagnosis even though no consent had been given
- The next day Mr Taylor telephoned Mr Pointon to strongly encourage he return to work the next day
- On 28 January he informed the MD by email he would not be able to attend a management meal as he was too tired and given the prognosis time with his family was “precious”
- The next day there a unscheduled meeting called and the MD complained about “these sort of emails” and required he completed work on Friday evening, Saturday, Sunday and “if he could not do [work] in his working day then he would have to di it in his leisure time.” The reason for this meeting to to “tell the claimant off.”
- The claimant was accepted to a new trial treatment and was concerned about how much work he could do but the employer did not make any enquiries of any medical professionals to obtain advice.
- The claimant advised the employer, following medical advice, that he could not complete a major piece of work as this posed a risk to him and the MD reacted negatively and alleged he had let him and the company down. This amounted to “a hostile working environment.”
- There were very limited concessions given on the long hours expected of the claimant.
- Around 10 May Mr Pointon was shouted at by Mr Taylor including telling him “he did not care what [his] condition/illness/situation was”.
In his evidence to the Tribunal the MD who was of course disputing the allegations of discrimination gave evidence that he treated everyone equally, at the Tribunal summarised (para 68):
It seems to the Tribunal that Mr Lawton’s focus was firmly on the business and its needs. Whilst he stated that he understood about the Claimant’s condition and the effect upon him and that he understood the need for adjustments to be made, we find that in actual fact he did not. He said in oral evidence that he treated everybody equally and by so doing betrayed the fact that when dealing with a disabled person equal treatment is often not enough and at times you have to go further in order to level the playing field by treating a disabled person more favourably.
The thing about the bastard defence is that normally an employer will not deploy it in the crude characterisation I put it in the opening paragraph, they will say they treat all their staff equally (which sounds right and fair doesn’t it). In the context of this case that defence rightly held no sway. How an employee “normally” treats an employee is exactly the arrangement (PCP) that places a disabled worker at a disadvantage. As the judge said treating all employees equally is no defence to a claim of failure to make adjustments where, sometimes, what the employer must do is treat a disabled worker more favourably than non-disabled co-workers.
Even in other types of discrimination treating all employees identically may well be be an inadequate inadequate defence to claims. In indirect discrimination complaints, for example, claims on the basis of ‘equal treatment’ may well place some workers sharing a protected characteristic at a disadvantage. For example, in a commonly used example, an employer who has a policy that no worker can work part time may well find themselves having complaints from its workers with caring responsibilities (unfortunately mainly female). If that policy cannot be justified then that too will be discriminatory. Equal treatment, if understood to be ‘the same treatment’ is sometimes exactly what an employer should not do.
It is only in a direct discrimination claim that a ‘I treat all my workers equally poorly’ has any real prospect of defeating a claim.
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