Is it Proportionate?

Section 15 of the Equality Act 2010 makes it unlawful to treat a disabled person unfavourably for something that arises in consequence of the person's disability. The Act itself defines the unlawful treatment in this way: 15 Discrimination arising from disability (1) A person (A) discriminates against a disabled person (B) if—(a)A treats B unfavourably … Continue reading Is it Proportionate?

Menopause, Disability and the Equality Act 2010.

In recent months I have assisted in a case in which a worker was on the brink of dismissal for absences that were entirely attributable to her experience of menopause (thankfully averted, the dismissal that is). In another a worker was subject to a misconduct allegation for an emotional and out of character outburst that … Continue reading Menopause, Disability and the Equality Act 2010.

Arising in consequence

For disabled employees the Equality Act 2010 sets out seven different types of discrimination. Of all the these it is the concept of discrimination arising from disability that I have found to be most useful when assisting employee in workplace disputes. I have discussed this before on the blog (see here and here)  but, by … Continue reading Arising in consequence

Lying employer shifts burden of proof in discrimination claim.

I have been tempted in the past to establish a 'hall of shame' feature on the blog to highlight the depths some employers will go in their treatment of employees based on public decisions of their conduct in caselaw. If I were ever to do so Base Childrenswear Ltd would surely stake a claim for … Continue reading Lying employer shifts burden of proof in discrimination claim.

The return of Efobi? The burden of proof in discrimination claims.

In February I made reference to the unfortunate decision of the Court of Appeal in Royal Mail Group Ltd v Efobi [2019] IRLR 352 to overturn the Employment Appeal Tribunal's earlier interpretation of section 136 of the Equality Act 2010 that made it easier decision to establish that the burden of proof at which a … Continue reading The return of Efobi? The burden of proof in discrimination claims.

Now you see it, now you don’t: the strange case of the vanishing dismissal (or possibly not).

When someone is dismissed from their employment for misconduct the ACAS Code of Practice states that the employer should allow the opportunity to appeal and, in most cases, the employee will be seeking for the dismissal to be overturned and to be reinstated to their formal role. The Code also requires that that appeal and … Continue reading Now you see it, now you don’t: the strange case of the vanishing dismissal (or possibly not).

Disability and Issue Estoppel

In responses to employment tribunal claims it is sometimes argued that a tribunal does not have jurisdiction to hear the complaint because the tribunal is 'estopped' (prohibited) from deciding an issue because it has already been decided by the Tribunal. This can occur when a claimant has previously made an employment tribunal claim. The basic … Continue reading Disability and Issue Estoppel

RMT lose age discrimination case brought by union member

The Employment Appeal Tribunal has this week upheld the decision of an employment tribunal that the RMT union directly  discriminated against a union member when, by applying its own union rules, it refused the member the opportunity to stand for the union's national executive committee (NEC) because of the member's age. In RMT v Lloyd the … Continue reading RMT lose age discrimination case brought by union member

The Data Protection Act and Victimisation

The Data Protection Act 2018 has broadly been described as a positive re-inforcement of the data rights of individuals, including workers. This is a fair summary but it is not a completely positive development in that the Act has actually curtailed the rights of an worker to see what their employers and former employers have … Continue reading The Data Protection Act and Victimisation

Direct Discrimination: Burden of Proof

In this third post on direct discrimination I am going to comment on the role of section 136(2) of the Equality Act which provides that when considering a discrimination complaint that If there are facts from which the court could decide, in the absence of any other explanation, that a person (A) contravened the provision … Continue reading Direct Discrimination: Burden of Proof

Direct Discrimination: Causation

In this second post I want to give some thoughts on causation. As explained in the last post, direct discrimination occurs when a person is treated worse than another person because of a protected characteristic. It is not, therefore, enough that a black worker has been treated less favourably than a white worker by being … Continue reading Direct Discrimination: Causation

Direct Discrimination: Reason and Intention

Over the next couple of days I will be posting a four part series on direct discrimination, specifically on the role of intent, causation, proving discrimination and what defences are available. It is not a detailed explanation but an introduction to these four aspects. To someone who has not had personal experience of the legal … Continue reading Direct Discrimination: Reason and Intention

Discriminatory Dismissals and the Band of Reasonable Responses

In the 2017 case of O'Brien v Bolton St Catherine's Academy the Court of Appeal considered the question of whether the test of whether a discriminatory dismissal under section 15 of the Equality Act 2010 was necessarily an unfair dismissal. The key issue was whether the test as to whether a dismissal was "a proportionate … Continue reading Discriminatory Dismissals and the Band of Reasonable Responses

Pimlico Plumbers Visit the Supreme Court

It is only less than two months since Don Lane, a worker for courier firm DPD, died after DPD fined him £150 for having the audacity of attending a necessary hospital appointment.  As a 'self-employed' worker workers like Lane have very few effectively no employment rights. For example, fining a worker for attending a disability … Continue reading Pimlico Plumbers Visit the Supreme Court

Can a Taxi to work be a Reasonable Adjustment?

This is a question that is only ever likely to be asked of employees of central government departments. In most circumstances a disabled employee who is unable to travel to work by their own means (for example, by driving or using public transport) may obtain assistance through the Access to Work scheme which provides fares … Continue reading Can a Taxi to work be a Reasonable Adjustment?

Disability and Disciplinary Dismissals

In recent weeks the Employment Appeal Tribunals judgement in Thomson v Imperial College Healthcare NHS Trust has been published. The key issue which has been attracting comment is the endorsement of the first tier tribunal's decision that a dismissal may be unfair because of the choice of the decision maker, even when there is no … Continue reading Disability and Disciplinary Dismissals

Tell Me the Reason Why

It is not often there is an appeal judgement of genuine assistance to employees, but the EAT's decision last year in Essop v Home Office is one such case in which my union, PCS, assisted the claimants in appealing. The background is that the Respondent had a Provision, Criterion or Practice that an employee wishing … Continue reading Tell Me the Reason Why