The tribunal held that abuse and taunting by staff in relation to the claimant’s stammer were unlawful discrimination contrary to the DDA 1995. The abuse was an offshoot of friction which had arisen when the claimant started to point out perceived inefficiencies in working practices. That friction also lay at the root of aggressive and intimidatory behaviour by the claimant at a meeting, for which the employer dismissed him. The tribunal held his dismissal was not unlawful discrimination, because the dismissal was not for a reason related to his disability. So his DDA claim succeeded as regards the abuse by staff, but not as regards the dismissal.
Employment Tribunal, case no. 1808186/2001, April 2002.
The claimant had a severe stammer. The employer accepted that he was ‘disabled’ as defined in the Disability Discrimination Act 1995. The tribunal said the claimant had “a severe stammer, which he works very hard to control but which nevertheless clearly has a substantial and long-term adverse effect on his ability to carry out normal day to day activities.”
Shortly after starting work in a dyehouse, the claimant (who was a very experienced dyehouse operative) began to point out to other operatives perceived inefficiencies in working practices, and to suggest alternative ways of working. The other operatives did not welcome this. A director tried to mediate, but there was still friction.
As the difference of opinion continued, the claimant began to experience taunting and abuse directed at his stammer. Two operatives in particular “subjected [the claimant] to cruel abuse on an almost daily basis”. They often laughed and pulled faces at the claimant, who would sometimes contort his face trying to get his words out, and they made grunting sounds when he was in the vicinity. The managers were aware of this abuse. For example, the assistant manager heard an operative say, “why don’t you do us all a favour and f**k off you stuttering twat.” Also, the tribunal accepted that the behaviour of the operatives had been brought to the attention of the manager.
Matters came to a head about six months later. Meetings were held which failed to resolve any of the issues. An operative again said to the claimant, “do us all a favour and leave and f**k off, you stuttering bastard.” The dyehouse manager was not willing to intervene on the claimant’s behalf. The next day, the claimant told the manager he was going home until the dyehouse men were “sorted out”. A few days later the claimant met with a director. There was a conflict of evidence as to what happened at the meeting, but the tribunal decided that the claimant had behaved in an aggressive and intimidatory manner, and this led to him being dismissed.
In the tribunal hearing, the claimant was represented by his wife (“very ably”, said the tribunal).
Held by the Employment Tribunal: the abuse against the claimant was unlawful discrimination by the employer. The dismissal was not. In more detail:
- There was unlawful discrimination against the claimant for a reason relating to his disability “by subjecting him to the detriment of abuse and harassment … concerning his severe speech impediment”.
- The employer was liable for the acts of its employees who carried out the abuse (this is now in EqA s.109(1))
- The employer did not have a defence of having taken reasonable steps to prevent the abuse (the defence is now in EqA s.109(4)). Its managers knew of the behaviour but did nothing to prevent it. In any event, the steps the employer took to bring its “perfectly serviceable” Equal Opportunities Policy to the attention of the workforce and leave them in no doubt behaviour of this sort would not be tolerated were inadequate. The Policy was simply displayed on the notice board.
- There was a separate act of discrimination and the claimant was subjected to further detriment when the employer failed to investigate and deal with the claimant’s complaints about the behaviour of other operatives.
- The dismissal of the claimant was not discrimination, it was not for a reason related to the disability. (It would though have been ‘unfair dismissal’ if the claimant had had the requisite one-year qualifying service.) The reason for the dismissal related to the aggressive and intimidatory behaviour at the meeting. The difference of opinion on working practices was, said the tribunal, the prime cause of the friction in the department. The abuse directed at the claimant’s disability was an offshoot of this friction but not the cause of it. Also it was this underlying and unresolved friction (which the claimant had instigated) which lay at the root of the claimant’s behaviour at the meeting. The friction would still have been there even if the employer had acted as it should to prevent the abuse.
From October 2004 there is a specific claim for ‘harassment’. The abuse in this case would clearly count as unlawful ‘harassment’ within the new rules.
An employer will often be liable for harassment by an employee’s work colleagues, as well as managers. See Harassment of employees>Harassment by colleagues – liability of the employer.
Under the Equality Act 2010, might the dismissal have been discrimination arising from disability contrary to s.15, unless justified? It might have been arguable that the claimant’s behaviour in the meeting stemmed at least in part from the way he was being abused by staff in relation to his stammer. However that would be a question of fact, to be decided by the tribunal on the evidence.