Discrimination Update

 Long term absence and disability discrimination

Disability discrimination is one of the most complex areas of employment law and employers are ill advised to move to dismissal prematurely.  In a recent case the Employment Appeal Tribunal (EAT) held that an employment tribunal (ET) must consider whether the employer could have been expected to wait a little longer before dismissing the employee. It is therefore important that you have provisions in your employment contracts that deal with long term sickness absence and a comprehensive sickness and absence policy and procedure in your employee manual.

ACAS has recently published guidance on disability discrimination: key points for the workplace which can be accessed here.

Cordant Security Limited v Singh – no discrimination if there is no detriment 

Mr Singh was sent home following an allegation that he smelt of alcohol at work. In return Mr Singh claimed that his supervisor used racially abusive language towards him. The employer failed to investigate this grievance. The ET held that that failure to investigate Mr Singh’s allegation amounted to direct race discrimination under the Equality Act 2010 (EA 2010). It later transpired that Mr Singh fabricated the allegations and his damages were accordingly reduced to zero.

On appeal the EAT held that the ET had erred in finding that there had been direct race discrimination. Mr Singh’s grievance was entirely fabricated and it would have been impossible to show both less favourable treatment and detriment for the purposes of EA 2010. Even if an investigation had taken place the outcome would have been that Mr Singh was lying about the racial abuse.

Indirect age discrimination

Ms Dippenaar had worked as a teacher for a school in East London for 12 years. She was on the highest pay grade for a teacher with the same experience. A newly qualified P.E. teacher would earn half as much as Ms Dippenaar. A new Head of Faculty/Director of Learning was appointed in 2012 and Ms Dippenaar subsequently received negative assessments. As a result, she resigned and brought claims for constructive unfair dismissal and indirect age discrimination. She alleged that she had been “pushed out” as she was too expensive.

The ET allowed both of her claims. The EAT took an entirely different stance.  There was no indirect age discrimination as the Ms Dippenaar failed to prove that the school had a habit of pushing out older teachers on higher pay grades and replacing them with younger teachers on entry level pay grade contracts. However, the constructive unfair dismissal was held to be procedurally unfair.

Indirect discrimination by association

Following the European Court of Justice (ECJ)’s recent decision in Case C‑83/14 (CHEZ Razpredelenie Bulgaria AD) a claimant who does not have a protected characteristic can now bring a successful indirect discrimination claim. This case involved the height at which the electricity meters were fixed in a predominately Roma district. The claimant was not of Roma origin but she did have a shop in the said area and argued that she has suffered a detriment. The ECJ accepted that an individual may suffer indirect discrimination by association and allowed the claim.