The Employment Appeal Tribunal (“EAT”) has held that the Equality Act 2010 does protect individuals from post-employment victimisation. We recently blogged about the case of Rowstock Ltd and another v Jessemy where Mr Jessemy was unsuccessful in his claim for post-employment victimisation against his former employer. The EAT has departed from this decision in the case of Onu v Akwiwu and another UKEAT/0022/12.

The EAT has suggested that even if the Act does not appear to cover post-employment victimisation the wording of the Act is ambiguous and enables interpretation to include this protection.

In this case Ms Onu, a Nigerian migrant domestic worker brought claims against her employer for unfair dismissal and direct race discrimination under the Race Relations Act 1976 (“RRA 1976”). The RRA was repealed and replaced by the Equality Act 2010 approximately 6 months after the facts in this case took place. Ms Onu’s employer, Mr Akwiwu telephoned Ms Onu’s sister in Nigeria and said that her sister was suing him and “if she thought things would end there she was wrong” and that “she would suffer for it”. He asked Ms Onu’s sister to persuade her to stop. Ms Onu brought a claim for victimisation. The Tribunal held that her claim for post-employment victimisation failed. Ms Onu had failed to establish that the threats were a result of her bringing proceedings under the RRA 1976. Her claim for direct race discrimination succeeded and her employers were ordered to pay Ms Onu the national minimum wage.

The employer appealed to the EAT on the finding of direct discrimination and the national minimum wage. Ms Onu cross-appealed on post-employment victimisation.

The EAT overturned the Tribunal’s decision on victimisation and direct discrimination but upheld the decision on the national minimum wage entitlement.

In relation to the victimisation claim, the Tribunal had erred in deciding that because Mr Awiwu had not referred to the discrimination claim in his call that this did not amount to victimisation under the Equality Act 2010. The EAT looked at the meaning of the Act and whether it would accord with the EU law regarding post-employment victimisation. The EAT held that the Equality Act 2010 could be interpreted to cover post-employment victimisation regardless of EU law. The Act does not explicitly exclude victimisation after the relationship has ended and that if victimisation were outlawed in other provisions of the Act then the exclusion of a separate provision in the Act for post-employment victimisation would avoid double-recovery.

The EAT seemed adamant that post-employment victimisation should be covered under the Equality Act 2010 however, the reasoning seems questionable. It appears that the interpretation of the Act in light of EU law is sound. The Court of Appeal may well have to consider this issue and we will keep you posted.

You may have heard in the press about the recent cases on religious discrimination by Mrs Chaplin, Ms Ladele and Mr McFarlane. All of these claimants’ cases were rejected by the European Court of Human Rights.

Mrs Chaplin worked as a nurse. Her employer prevented her from wearing her crucifix on the ward for health and safety reasons. Ms Ladele worked as a registrar and due to her religious beliefs refused to conduct wedding ceremonies for civil partners. Mr McFarlane was a counsellor, working for Relate. He refused to provide counselling services to same sex couples on account of his religious beliefs.
There have been reports that the three individuals will be submitting appeal papers to the Grand Chamber of the European Court of Human Rights. It is alleged that they will argue that double standards are being applied by the British Courts against Christians for political reasons. Watch this space for this appeal. It is likely to spark a lot of media and press attention.

Ms Bouabdillah was employed by Commerzbank. She resigned from her previous employer, Deutsche Bank following the issue of proceedings against them for sex discrimination and equal pay.

The new employer asked Ms Bouadillah why she had left Deutsche Bank. She said that she felt she had not been properly rewarded, she had lost trust in management and wanted to work in a smaller team. She was asked to complete a pre-employment questionnaire for the Financial Services Authority (“FSA”) in which she answered “no” when asked whether she had ever been involved in civil proceedings in the UK.

Following the publication of an article in the press regarding Ms Bouadillah’s case she requested a meeting with her new employer about the article. Ms Bouadillah did not know that such an article would be published. Commerzbank highlighted the relevant wording in the Staff Handbook which stated that employees are required to inform the bank of matters which might adversely affect the bank’s reputation and which might impair an employee’s ability to perform their role. Her employer argued that she had been dishonest and that there had been a breakdown in mutual trust and confidence as she has failed to inform the bank of the litigation. Ms Bouadillah was dismissed.

The claimant brought a claim for victimisation under the Equality Act 2010 in the Employment Tribunal and won. The Employment Tribunal held that the Claimant had provided answers to the direct questions and had not misled the bank. The pre-employment questionnaire related to her classification for the FSA as a fit and proper person and the litigation was not relevant. No reputational damage was caused to the bank and the litigation was a private matter which she need not disclose.

Of interest is the Tribunal’s finding that the Handbook misunderstood how direct discrimination works in practice and that the employer did not understand the concept of discrimination. This is concerning for a large organisation such as a bank. Organisations should consider carefully training on discrimination issues to all staff to avoid criticism from tribunals. Finally, it should be borne in mind that had Ms Bouadillah’s previous employer, Deutsche Bank provided a poor employment reference because she had issued proceedings against them she may not have had a remedy in the Tribunal for victimisation. For more information of this issue see our blog of 9 March for a case on post-employment victimisation. This case has recently gone to the Employment Appeal Tribunal and we have more news. Blog to follow.

The ECJ has considered the meaning of disability and the concept of reasonable accommodations (in English law, reasonable adjustments) in the case of Ring v Dansk Almennyttigt Boligselskaband and anor. In doing so they have taken account of the UN Convention on the Rights of Persons with Disabilties. The ECJ also confirmed that a person does not have to be totally incapable of work to be disabled and that the origin of the disability is irrelevant provided the disability hinders full and effective participation in professional life and its effects are sufficiently long-term.

The ECJ went on to provide some helpful wording on what a reasonable adjustment is. In summary reasonable adjustments are aimed at eliminating the barriers that hinder the full and effective participation of disabled persons in work on an equal basis with others. A reduction in hours may be a reasonable adjustment if it enables the person to remain in work. It is for national courts to decide if the burden on the employer is disproportionate taking into account costs, the size of the employer’s business and its resources.

The judgment of the ECJ in Ring v Dansk gives us further guidance from the ECJ on the definition of disability. It ruled that disability is a limitation that results in particular from physical, mental or psychological impairments which hinders the participation of the person concerned in professional life and which is likely to last for a long time.

The EU is a signatory to the UN Convention on the Rights of Persons with Disabilities. The Convention states that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.

Article 1 reads that:

“persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.

Article 2 refers to reasonable accommodations as:

“necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden… to ensure persons with disabilities enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

The case which saw the national court make a referral to the ECJ deals with the cases of two Danish employees, Ms Ring and Ms Werge. Both were dismissed for incapacity resulting from back pain which had caused long-term absence. In both cases there was no prognosis indicating when they might be fit for work again. Ms Wenge had suffered a whiplash injury following a car accident. Ms Wenge suffered back pain. Danish law allowed their employers to reduce their notice periods to one month from three on the basis that their absence had endured for more than 120 days. The trade union HK brought disability discrimination claims in the Danish Maritime and Commercial Court. They argued that the employers had failed in the reasonable adjustments duty by failing to offer them reduced working hours instead of dismissing them. HK also argued that the reduced notice period was unlawful because the absence related to disability. The employers argued that the claimants were not disabled and that in any event there was no duty to offer reduced hours. The Danish court asked a number of questions in its reference to the ECJ. They were:

1. Whether a person is disabled if their physical, mental or psychological impairments mean they cannot carry out their work (or can only carry it out to a limited extent)?

2. Whether disability includes conditions caused by a medically-diagnosed incurable illness or a temporary illness which has been medically-diagnosed?

3. Whether a person is disabled where they have reduced functional capacity meaning they cannot work full-time even though they need no special aids to be able to work?

4. Whether a reduction in working hours is capable of being a reasonable accommodation?

5. Whether the Directive precludes a national law permitting a notice period to be reduced even if the absence is caused by disability or if the absence is due to the employer not implementing reasonable accommodations?

The answers were as follows:

1. The concept of disability does not imply the complete exclusion from work or professional life. A person who is fit to work, albeit part-time can still be disabled.

2. Disability is about hindrance not impossibility so it is not intended to be limited to conditions that are congenital or which result from accidents. The origin of the impairment is an irrelevance so long as it has the functional effect of hindering (on a long-term basis).

3. The concept of disability does not depend on the nature of any accommodations that might be made such as special equipment. These measures are the consequence of disability not an element of the definition of it. A person with reduced capacity can be disabled irrespective of how much they work.

4. The concept of reasonable accommodation must be given a broad interpretation. It is about necessary and appropriate modifications which do not impost a disproportionate or undue burden on the employer. RAs are about eliminating barriers which hinder the full and effective participation of disabled employees.

5. The ECJ held that the Directive does preclude a national law allowing a reduced notice period where the absence is caused by the employer not making reasonable accommodations. It is also contrary to the Directive if national law reduces the notice period without being able to show that doing so is a proportionate means of achieving a legitimate aim. Put simply this means that reducing the notice period will be discriminatory unless the employer can provide a means of justifying the conduct.

This case means that national courts should be looking to interpret the disability discrimination laws of their countries so as to give emphasis as to whether disabled employees are being given the opportunity to have full and effective participation in the workforce and to ensuring that barriers which hinder such participation must be addressed. Unfortunately the decision does little to impact the greatest barrier faced by disabled workers which is the attitudes, beliefs and, in the case particularly of mental health conditions, the stigma of disability.

Mr Heafield, a casual sub-editor for the Times Newspaper bought a claim for religious harassment against his employer following another colleague’s conduct.

The Times was preparing a story, during the Pope’s visit to the UK back in 2010, relating to allegations that the Pope had protected a paedophile priest. Due to a delay in running the story one of the Times editors shouted across the office “can anyone tell me what’s happening to the fucking Pope?”. Mr Heafield, a Roman Catholic took offence to this remark and said it amounted to harassment because of religion and belief.

A harassment claim may be brought where a person engages in unwanted conduct connected to a protected characteristic (in the present case, religion) and the conduct has the purpose of violating the worker’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for the worker. When assessing whether the conduct had this effect, a Tribunal must take into account various issues including the perception of the worker.

An Employment Tribunal concluded that the conduct did not have the effect set out above as the colleague did not know of Mr Heafield’s religious beliefs. He was under pressure and was referring to the article which was being prepared. The tribunal found there was no purpose or effect of creating an adverse environment. Mr Heafield was unreasonably sensitive. Mr Heafield had not reacted reasonably by bringing a claim.

Mr Heafield appealed. The EAT reiterated that his colleague’s comment was not directed at anyone. They appreciated that it could have been disrespectful to use bad language in the same sentence as a reference to the Pope. However they held that imposing legal liability in a case of this nature would be undesirable. Mr Heafield’s appeal was rejected.

A word to the wise: be careful to police banter and language in the workplace. Whilst the inappropriate comment may not have been held to amount to harassment or have been intended to cause offence that does not necessarily mean it will not do so. A throwaway remark related to a protected characteristic could spark litigation. And we all know where litigation leads. Lawyers and costs! Having an equality policy which covers office chat and policing it is the best insurance against this type of claim. Is it time to review your policies?

In Walker v SITA Information Network Computing Ltd [2013] UKEAT 0097_12_0802 the Employment Appeal Tribunal (EAT) rejected the argument that the claimant’s obesity, on its own, satisfied the definition of disability under the Equality Act 2010 (the Act). However they went on to find that obesity is capable of amounting to an impairment, and therefore a disability, judging by the functional impact on the claimant.

Under the Act, a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term effect on their ability to carry out normal day-to-day activities.

In the present case, an obese employee brought a claim of disability discrimination against his employer. The employee suffered from a wide range of conditions including but not limited to asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains some of which were exacerbated by his obesity. The Employment Tribunal at first instance concluded that he was not disabled as they could not establish the exact cause of the physical and mental impairments.

On appeal, the EAT held that the employee was disabled because he suffered from a “functional overlay” of various mental and physical conditions which were accentuated by obesity. The EAT said that the proper issue for consideration by the Employment Tribunal was to look at the nature of the impairment rather than a condition which is medically recognised. On that construction, the EAT held that the claimant had both physical and mental impairments.

The EAT also recognised the fact that obesity may make it more likely that a person is disabled. This is an interesting judgment in the field of disability discrimination and one which practitioners should note given the level of obesity in our society. This decision could have far- reaching implications for those who have not been medically diagnosed but who suffer from impairments. Remember that under the Equality Act definition of disability tribunals are interested in functional impairment. It is the effect of a condition on the claimant that is important not the cause or the label.

This decision may be based on the fact that in the present case the claimant had so many significant impairments to his functional ability and we are certain that lesser cases will struggle to meet the definition of disability. However this case does have implications for employers who may be required to defend obesity claims which even if unsuccessful at hearing have the ability to cause a tremendous amount of nuisance.

The Equality Act 2010 (the Act) does not cover victimisation against a worker after they have left their job.

In Rowstock Ltd and anor v Jessemy, Mr Jessemy issued a claim against his former employer Rowstock Ltd for unfair dismissal and age discrimination having been dismissed for retirement before his 66th birthday.

Mr Jessemy believed that his ex-employer had provided a negative reference to a prospective employment agency because he had issued a claim regarding his dismissal. He brought a further complaint of post-employment victimisation. Despite the Tribunal conceding that the ex-employer had provided a poor reference limiting Mr Jessemy’s ability to obtain alternative employment the Tribunal rejected his victimisation claim as it had no jurisdiction to hear it. s.108(7) of the Act excludes post-employment victimisation.

Mr Jessemy appealed on the basis that Parliament could not have intended to remove this protection and that the Tribunal did have jurisdiction to hear his claim. The EAT dismissed his appeal. The wording of section 108(7) is clear. The tribunals are required to observe the letter of the law.

The EAT has granted permission for Mr Jessemy to appeal as this is a matter of some general importance on which there is no current authority. The general consensus among practitioners is that post-employment victimisation is important and needs protection. It appears that its omission from the Act may simply be a drafting error as both national and EU case law provides for this protection. Surely it was not Parliament’s intention to exclude this protection?

We will have to wait and see what happens in the Court of Appeal. Let’s hope sense prevails. It’s a shame this has not been tabled to be included in the Enterprise and Regulatory Reform bill but at this time no provision has been made. Who knows when the amendment will be forthcoming but we are sure it will. We’ll keep you posted.

In Jennings v Barts and the London NHS Trust the EAT has found that it would not have been a reasonable adjustment to exempt an employee from the Trust’s absence management policy.

The EAT upheld the decision of the first instance tribunal that there had been no failure in the reasonable adjustments duty following the dismissal of a disabled employee who was on long-term sick leave.

The EAT also found that the employer was not unreasonable in dismissing the employee in spite of a recommendation from occupational health that a phased return to work might be undertaken.

The facts of this case are that Mr Jennings worked in IT Support. He was with the Trust for 9 years before being dismissed in January 2008 on grounds of poor attendance due to ill health. He had intermittent health-related absences throughout his employment. The Trust rigorously applied its short-term absence policy and instituted disciplinary proceedings. A series of meetings were arranged, many of which were postponed by Mr Jennings for medical reasons. Some were held in his absence because he failed to attend. A first written warning was issued in October 2007. Without prior notice and in breach of its own policy the Trust then used that warning to commence a long-term absence procedure. At a final stage meeting under the long-term procedure a decision was taken to dismiss. Mr Jennings’s absences were causing pressure on his colleagues and his department. In spite of an OH report suggesting a phased return was appropriate and might be commenced there was a possibility Mr Jennings would not return to work and no date had been set. He was dismissed. His appeal against dismissal was unsuccessful.

A tribunal rejected Mr Jennings’s claims for unfair dismissal and disability discrimination. The tribunal held that Mr Jennings had “ample and fair opportunity” to engage in the process but failed to do so. The tribunal found that the OH report suggesting a phased return was optimistic and that in spite of it being what the employee probably wanted to hear (and needed to hear) Mr Jennings was himself pessimistic about a return. Mr Jennings also had no proposals to make about his employment or suggestions for redeployment despite having ample opportunity to participate. He also failed twice to return a stress questionnaire he had been asked to complete.

In relation to reasonable adjustments the tribunal held that it was not reasonable for the Trust to disapply its short-term absence policy in spite of the fact that it accepted that Mr Jennings was disabled for the purposes of the Equality Act. It was not reasonable for the Trust to have to tailor its policies to suit Mr Jennings.

The EAT also ruled that the employer could have “imputed knowledge” for the purposes of a reasonable adjustments claim even if the wrong diagnosis had been attached to the knowledge at the time. A diagnosis of PTSD was proffered which was subsequently relabelled paranoid personality disordder and major depression. There was still sufficient information from which to deduce that Mr Jennings was suffering from an impairment which was sufficiently long-standing and which interfered with his normal day to day activities so as to amount to a disability.

The EAT noted in this case that Mr Jennings’s absence record was “severely poor“. In an eight month period he had been absent for 100 days. The EAT saw no basis to interfere with the Trust’s conclusion that on the facts the absence could not be tolerated under the absence management policy. The dismiss was fair and no disability discrimination had occurred.

In refusing to exercise its just and equitable discretion to extend time for a race discrimination claim did a tribunal commit an error of law? No, says the EAT, when it was entirely the claimant’s fault that her claim was presented late, DeSouza v Manpower UK Ltd.

The claimant’s employment was terminated on 21 May 2009. Her claim should have been presented no later than three months minus one day from the effective date of termination (EDT), i.e. 20 August 2009. She presented her claim on 21 August 2009, one day late. Her reasoning was that she mistakenly cited 23 May 2009 as her EDT. She had been legally advised, seeking advice from a solicitor, and was patently aware of the time limits. She had some concerns about issuing the claim via lawyers on the basis of costs but there was nothing to prevent her issuing the claim herself. She was aware of the time limit and had made a mistake.

The EAT relied on British Coal v Keeble. The claimant was entirely at fault (unlike her lawyer who was held to be free from error). There was no exceptional reason for the delay which justified the tribunal applying its discretion to extend time. The EAT dismissed her claim.

This case serves as a further reminder – to claimants and their advisers – as if one is needed – that late claims are pretty much fatal. Get the claim in early to avoid disappointment. And if you are submitting near the deadline check that the tribunal has actually received the claim, especially if you are issuing by post, fax or email.

In Aderemi v London South East Railway the EAT has overturned the decision of the first instance tribunal that Mr Aderemi was not disabled because there was no impact from his impairment on his normal day to day activities. The EAT held that the tribunal was wrong to focus on what the claimant was able to do; its focus should have been on what he could not do. Additionally, the requirement to stand for long periods was capable of being a normal day to day activity on the basis that there are many jobs which require employees to stand at length. The EAT has affirmed that a broad approach to normal day to day activities should be adopted.

The facts are that Mr Aderemi was a station assistant. He suffered a back problem which meant that he could not stand for more than about 25 minutes at any one time during his nine hour shifts. He took time off sick and was eventually dismissed on capability grounds. He brought a disability discrimination claim.

The tribunal accepted that Mr Aderemi had a physical impairment but did not accept that it had a substantial impact on his normal day to day activities. The tribunal focussed on all the things Mr Aderemi was able to do rather than focussing on what his impairment prevented him from doing. The EAT was clear in overturning the decision that the focus must be on what the claimant cannot do as a result of the impairment. If the tribunal focussed on what the claimant could do they would never be able to establish whether there was a substantial impact on normal day to day activities. Their focus was entirely wrong. By looking at what Mr Aderemi could not do it was easy to demonstrate that there was a substantial impact.

The EAT also said that unless the impact was minor or trivial it must be treated as substantial i.e. there is no requirement to show how substantial the impact is as long as it passes the hurdle of not being minor or trivial. If the disadvantage to the claimant is a more than usual disadvantage it must be held to be substantial. The tribunal had failed to carry out a proper assessment.

The broader approach adopted by the EAT produced a significantly different outcome. The case has been remitted to be reheard by a freshly constituted tribunal.

The cases on the meaning of normal day to day activities have produced conflicting results. For further illustration see Chief Constable of Lothian and Borders v Cumming [2010] where it was held that participation in a profession and progression in a chosen career were not normal day to day activities. By contrast, in Paterson v Commissioner of Police of the Metropolis [2007] taking an exam to obtain promotion was held to be a normal day to day activity. In Goodwin v Patent Office [1999], the EAT overturned the decision of a tribunal that held that because a paranoid schizophrenic could perform normal domestic duties and get himself to work there was no impact on his normal day to day activities. The EAT (Mr Justice Morrison presiding) held that the focus must be on the things an applicant cannot do or can only do with difficulty rather than the things a person can do. Mr Goodwin could not interact with his colleagues due to auditory hallucinations. There was therefore an impact. Ahmed v Metroline Travel [2011] held that there was no impact on the normal day to day activities of a bus driver with a soft tissue back injury because while he could perform his job he could go to the gym and play with his children. In the light of Aderemi, Ahmed looks wrong.