A paid volunteer is not an employee under the Disability Discrimination Act 1995 (‘DDA’) if there is not mutuality of obligation between the parties. In the case of Breakell v Shropshire Army Cadet Force the Claimant was a paid volunteer but the Claimant neither had to accept the work, nor did the Cadet Force have to provide it to the Claimant. As a result the Tribunal found that there was no mutuality of obligation between the parties and the Claimant’s claim for disability discrimination was struck out as he was not an employee under s 68(1) DDA. The EAT upheld the decision. This decision is likely to apply to claims brought under the Equality Act 2010 which repeals the DDA.

Katie Rolfe

In the recent case of Martin v Devonshires Solicitors the EAT has held that an employer did not victimise its employee by dismissing her for raising several false grievances alleging discrimination.

The EAT had to decide in this case whether the dismissal of Ms Martin amounted to victimisation. The EAT had to decide whether the reasons for dismissal could be separated from the fact that her complaints alleged discrimination. Reasons for dismissing her included the serious, repetitive nature of the complaints and the employee’s refusal to accept that they were untrue and a consequence of her mental illness.

Ms Martin was employed as a legal secretary from early 2006. In January 2008 she submitted a grievance which claimed that her previous employer had disclosed to partners of Devonshires that she had brought a sex discrimination claim against it and as a result she had suffered harassment and victimisation. The investigation found that no one had been aware of her previous claim and that no discriminatory comments had been made. Devonshires found that Ms Martin’s grievance had been made in bad faith and maliciously. Ms Martin then went on sick leave for stress related symptoms and submitted seven further grievances regarding discrimination and victimisation. She submitted a claim to the Employment Tribunal. After seeking a report from an Occupation Health specialist Devonshires discovered that Ms Martin had a history of mental health problems. An additional report from Professor Hirsch, Consultant Psychiatrist found that Ms Martin suffered from a depressive illness with psychotic episodes and as a result suffered paranoid delusions.

Following her dismissal Ms Martin brought further claims for sex and disability discrimination, victimisation and unfair dismissal.

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The EAT has held in the recent case of JP Morgan v Chweidan that where a claim for disability related discrimination fails, the same facts should probably not support a finding of direct discrimination.

The Claimant was a banker who had become disabled as a result of an accident while on a ski trip with clients. Consequently the Claimant was unable to work the hours that he had previously which led to a reduced bonus and eventually his dismissal. The Tribunal found that the Claimant had not suffered disability related discrimination as the Claimant had been treated in a similar way to a comparator in the same situation but without a disability. The Tribunal did however find in favour of the Claimant in respect of direct discrimination under the same facts. The EAT overturned this decision as they could not see how a claim of direct discrimination could succeed on the same facts that a disability related claim had failed. The matter has been remitted to the Tribunal to consider whether there are additional facts to support a claim for direct discrimination.

Katie Phillips

The recent case of Aylott v Stockton on Tees Borough Council has handed down some useful advice on who is the correct comparator in a disability discrimination claim. In 2008 there was a landmark case, Lewisham Borough Council v Malcolm that changed the law in this area.  In claims for discrimination it is necessary for the claimant to specify to whom they are comparing themselves when asserting that they have been treated less favourably.

The Malcolm case changed the law stipulating that the correct comparator in cases of disability related discrimination is “someone who has behaved in the same way as the person concerned, but [who] did not suffer that person’s disability”. So if someone with a disability was off sick and they got dismissed their comparator would be someone who was also off sick but did not have a disability but no doubt would have been treated the same and dismissed. Hence no less favourable treatment and no discrimination.

This essentially made it harder to bring disability claims for direct discrimination.

The Court of Appeal in the Aylott made 3 points to reduce the unnecessary complexity:

As a result of the Malcolm case legal practitioners have focused on the failure to make reasonable adjustments, a form of positive discrimination which is also evidentially easier to demonstrate.

It is not wise or correct to carry across principles and precedents from other areas of discrimination law, such as race or gender, because disability related discrimination and the duty to make reasonable adjustments does not appear in that context.

Justification is no defence to direct discrimination on the grounds of disability. It is also no defence for a failure to comply with the duty to make reasonable adjustments. It does remain a defence to indirect discrimination cases and disability related discrimination.

Katie Phillips

The House of Lords has ruled in SCA Packaging Ltd v Boyle that likely (as used in paras. 6(1) and 2(2) of Schedule 1 of the DDA means ‘could well happen’. If a Tribunal has to decide whether an impairment is likely to have a substantial long-term adverse effect on the person’s ability to carry out normal day to day activities the standard of proof will be that the person must show that it could well happen were it not for corrective measures and treatment. The House of Lords has therefore rejected the interpretation previously used that likely means ‘more probable than not’ . The hurdle is therefore lowered for claimants in establishing a disability under the Act.