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.
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
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.
In February I made reference to the unfortunate decision of the Court of Appeal in Royal Mail Group Ltd v Efobi  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.
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).
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
In order to succeed in a disability discrimination one of the core requirements is that the impairment has, or is likely to, be long term. As enacted the Equality Act defines long term as being an impairment that has or is likely to last twelve months or more. As I have highlighted previously, the 12 … Continue reading Likely to be long term?
When does an employer have constructive knowledge of disability?
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
Last year the BBC ran a story on what it described as a 'landmark' case on whether veganism, or more specifically, ethical veganism was a religion or belief for the purposes of the Equality Act 2010. The factual background to the case is that the Mr Casamitjana was dismissed by his employer, the League Against … Continue reading Veganism and discrimination
Anti Irish Traveller rhetoric not Harassment, finds ET
It is a couple of months since I promised the last post in my brief series on direct discrimination with a summary on an employer's defence to direct discrimination claims. Life got in the way, etc. But first a recap, section 13 of the Equality Act 2010 sets out that that no employer can treat … Continue reading Direct Discrimination: Defences
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
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
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
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
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
It is well known that the Equality Act recognises nine 'protected characteristics.' In the majority of cases the claim will require that a person holds that protected characteristic to bring a claim. Thus, one cannot make a claim in the employment tribunal that your employer indirectly discriminates against older workers if you are in fact … Continue reading Eye of the Beholder
Mary is a typist, a role she has done for many years. After over ten years with a company she took the plunge and joined a new employer four months ago because they offered a higher salary. However, a few weeks after starting her role she had an unfortunate accident at home and she broke … Continue reading Can a temporary ailment be a Disability?
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
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?
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
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
If a person has type 2 Diabetes are they necessarily disabled under the Equality Act 2010? This was the question considered by the Employment Appeals Tribunal in Metroline Travel Ltd v Stoute  UKEAT 0302_14_2601. The claimant had type 2 diabetes but was not on medication for this but did control his condition by controlling … Continue reading Is Diabetes Necessarily a Disability?