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Losing one’s job

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Last updated 30th June 2022.

This page gives an overview of how the Equality Act and other legislation can apply to losing one’s job. This may be through being dismissed or being made redundant. If the employee resigns, there may also be legal rights, particularly if it amounts to “constructive dismissal”.

Summary

  • Dismissal can lead to both an Equality Act claim and a claim for unfair dismissal (below). These are different claims, but will often be made together.
  • Capability (ability to do the job) is the most obvious reason for dismissal that might be related to a disability.
  • However there are also cases on disability-related misconduct. These include at least three on stammering where claimants – mostly black – were dismissed (at least partly) due to behaviour perceived as shouting or threatening which they said was a result of their stammer: see below Misconduct, such as sounding “aggressive”.
  • Constructive dismissal (below) is broadly where the employer’s conduct was such that the employee is entitled to terminate the contract, and decides to do so. This too is treated as a dismissal, and both the Equality Act and unfair dismissal can apply.
  • Redundancy (below) is dismissal because of redundancy. There can be an Equality Act claim where the method of selecting someone for redundancy is discriminatory.

There is a separate page on Disciplinary, grievance and other procedures.

Capability

Where someone has been dismissed and disability is involved, they will commonly claim both under the Equality Act 2010 and (if they have been employed for two years) for unfair dismissal (below).

The most obvious type of dismissal where stammering may be relevant is if the employer considers the employee is not performing well enough in the job due to speech issues, ie “capability”. In fact I’m not aware of any stammering cases about capability dismissals, the closest thing being Heatherwood & Wrexham Park Hospitals Trust v Beer, 2006, where the stammer was just part of a mental impairment. Contrast Misconduct (below) where there are various dismissal cases on stammering.

Assuming capability is genuinely the reason for a dismissal – eg the employee is not just being picked on because of the stammer – relevant issues under the Equality Act are likely to include:

In a claim under s.15 EqA, it seems that an employer with actual or constructive knowledge of the disability (eg stammer) does not need to know of the causal link between the disability and the capability issue which led to the dismissal: see Knowledge of causal link with disability under s.15 EqA. For example the employer may not realise that problems are caused by the worker trying to conceal the stammer. In practice though, it is likely to be sensible for a worker to tell the employer of the link with the stammer (if they don’t know), not least so that reasonable adjustments can be considered to help resolve the issue.

Probably not likely to arise with stammering, but often in disability cases the employee has been off work a long time and it is unclear whether and when s/he will be able to return. Issues here include whether it is justified to dismiss them yet, and whether any appropriate reasonable adjustments have been made to facilitate a return to work, perhaps a phased return.

Misconduct, such as sounding “aggressive”

One would not expect stammering to be particularly relevant to dismissals for misconduct. However there are at least three cases where claimants have argued that behaviour perceived as shouting or threatening, which led to their dismissal, was a result of their stammer, eg speaking loudly, gesticulating. None of these tribunal claims were successful, and in one (O v TC Facilities) the claimant did not actually argue discrimination. However on appropriate facts there is clearly scope for an Equality Act claim to succeed in this kind of case, most obviously under s.15 EqA. For discussion of this in the context of O v TC Facilities below, see O v TC Facilities Management>Comments: Might an Equality Act claim have succeeded?

In three of the four cases below the claimant seems to have been black, and in the other one Asian. Stereotypes of black men being more aggressive (panmacmillan.com) could at least increase the risk of this happening. Race discrimination claims under the EqA might be relevant, but perhaps harder to prove.

O v TC Facilities Management, Employment Tribunal, 2020
The claimant’s employment was terminated without notice due to his alleged “verbal and threatening behaviour towards management” at a meeting. Part of the problem was him speaking loudly and quickly at the meeting. He had a stammer which caused him to do this when trying to communicate under stress. The employment tribunal rejected his claims for unfair dismissal and wrongful dismissal. He did not make an Equality Act claim.

C v Spencer & Arlington, Employment Tribunal, 2019
The claimant was dismissed for various reasons including bullying and threatening colleagues. The employment tribunal rejected a claim that he had a stammer which (he said) started in adulthood. He contended that the stammer was why he had raised his voice in a meeting, but he gave a different explanation at the time. He had not told the employer he had a stammer. Also the tribunal said that none of the employer’s witnesses had ever perceived a stammer. His race discrimination claim also failed.

M v Asda, Employment Tribunal, 2012
The claimant was dismissed after speaking in the supermarket to his cousin and co-worker in what was described as a loud and threatening manner. He said it was his stammer that caused him to raise his voice unusually and to gesticulate. Though apparently accepting that his stammer was a disability, the tribunal rejected his disability discrimination claim.

T v Office for National Statistics, Employment Appeal Tribunal (EAT), 2004
The claimant was black and had a stammer. He was dismissed during his probationary period principally because of a “sharp and sudden decline in his attitude and behaviour”. The tribunal held that his stammer was a disability within the DDA 1995, but that his claim failed because his dismissal was not for a reason related to his disability. The EAT upheld the decision. The claimant did make the point that other staff might wrongly interpret effects of his stammer as aggressive behaviour, but it is not clear whether that was relevant to the behaviour complained of. The tribunal and EAT also rejected his race discrimination claim.

Misconduct: If behaviour is actually aggressive

At least in the first case above, O v TC Facilities Management, the tribunal specifically found that the claimant was not intending to be aggressive, just his stammer caused him to speak loudly and quickly when trying to communicate under stress. Speaking loudly due to a stammer may be mistaken for aggression, but there may be other cases where there is actually aggressive or offensive behaviour linked to a disability. For example in Risby v LB Waltham Forest, 2016, the claimant was indignant at a failure to make adjustments, or see this article by rugby player Mark Jones on his stammer (walesonline.co.uk), 2021.

If the misconduct is sufficiently linked with the disability, then as ever it will depend on the particular facts and evidence whether the employer can show the dismissal is proportionate. This is so whether or not there is actual aggression. Examples of applying the proportionality test to serious misconduct related to a disability include Burdett v Aviva (sexual assaults) and Hensman v Ministry of Defence (covertly filming a colleague in the shower), both 2014.

There is one older case on stammering and dismissal due to aggressive behaviour where the tribunal held – plausibly it seems to me – that on the facts the dismissal was not related to the stammer:

B v John Edward Crowther Ltd, Employment Tribunal, 2002
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.

Note: The tribunal would probably have reached a similar conclusion under the later s.15 Equality Act 2020. The tribunal would probably have held that the agressive behaviour because of which he was dismissed did not arise in consequence of his stammer.

Misconduct: Employer need not know of link with stammer

An important case on disability-related misconduct is City of York Council v Grosset, 2018. The Court of Appeal held that on a claim under s.15 EqA, an employer with actual or constructive knowledge of the disability (eg the stammer) does not need to know of the causal link between the disability and the misconduct which led to the dismissal. See Knowledge of causal link with disability under s.15 EqA. However in practice it is likely to be sensible to tell the employer of the link between the conduct and the disability (if they don’t know), not least because it may dissuade the employer from dismissing, and it may be possible to make reasonable adjustments.

Formal procedures

Dismissal will normally be preceded by a formal disciplinary or capability procedure. Also the worker is likely to put in an internal appeal against the dismissal. The Equality Act, including reasonable adjustments, is important here in ensuring that the worker who stammers has the opportunity to participate fully and have their say. See Disciplinary, grievance and other procedures.

After a dismissal there may be an internal appeal, or perhaps a grievance process. On a tribunal claim under s.15 (discrimination arising from disability) or s.13 (direct discrimination), whether a later appeal decision etc by the employer is discriminatory is seen as a distinct question from whether the initial dismissal was discriminatory. So claimants should ensure their s.15 EqA claim includes not only the dismissal but also subsequent appeal decisions etc by the employer. The same applies to a s.13 EqA claim. See Stott v Ralli, 2021.

Failures in procedure may be relevant in deciding whether a dismissal etc is justified under s.15 EqA, though the actual question is whether the unfavourable treatment itself (eg the dismissal, or rejection of appeal) was a proportionate means of achieving a legitimate aim: Objective justification defence>Outcome vs process. On unfair dismissal see below Unfair dismissal: Relevance of procedure.

Unfair dismissal

If the alleged discrimination relates to dismissal (or if the person has resigned, see next paragraph), an unfair dismissal claim under the Employment Rights Act 1996 is often made as well as an Equality Act claim. For more on unfair dismissal see: Check if your dismissal is unfair (citizensadvice.org.uk).

“Dismissal” includes:

  • expiry of a fixed term contract, or
  • “constructive dismissal” (below), which is where the employee decided to leave but was entitled to terminate the contract because of the employer’s conduct.

An employee is dismissed for a reason related to his stammer. There may be an unfair dismissal claim as well as a possible Equality Act claim.

B v Apcoa Parking, Employment Tribunal, 2002-03
A parking attendant with a stammer successfully claimed unfair dismissal. A supervisor making fun of the employee’s stammer was only a contributory factor in the claim.

Subject to some exceptions, to claim unfair dismissal you need to have worked for the employer for at least two years. This is known as the “qualifying period”. No qualifying period is needed for an Equality Act claim.

“Unfair dismissal” is a distinct claim, under legislation separate from the Equality Act. Some important differences between unfair dismissal and Equality Act claims are:

  • No qualifying period is required for Equality Act claims, so you don’t need to have been employed for two years.
  • There is a statutory limit on compensation for unfair dismissal, but none for Equality Act claims.
  • Compensation for injury to feelings is available on an Equality Act claim. On unfair dismissal the “compensatory award” is limited to financial loss, such as loss of salary and pension rights, plus there is a “basic award”.
  • No discrimination is required for an unfair dismissal claim.
  • In an unfair dismissal claim, the employer has more discretion as to what is fair. The tribunal looks at whether the employer’s action is within the “range of possible reasonable responses” open to an employer. The options of dismissing or retaining someone may both fall within the range of reasonable responses an employer might adopt, in which case the tribunal should not substitute its own view of whether it would have dismissed the person. Under the Equality Act there is more scope for the tribunal to substitute its own view of what is ‘reasonable’ or justified.
  • Only an “employee” can claim unfair dismissal. Equality Act claims can be made by a “worker”, which is a wider term.
  • Procedural failings by the employer are more directly relevant in unfair dismissal claims than in deciding justification under the Equality Act: below Unfair dismissal: Relevance of procedure.

Unfair dismissal: Relevance of procedure

An unfair dismissal claim can succeed even if the employer’s only failure was procedural (above Formal procedures) – for example not hearing an appeal against a dismissal, or not giving fair warning and opportunity to improve before a dismissal for incapacity. Both the substantive decision to dismiss and the procedure need to be within the range of reasonable responses (not all failures will be bad enough to be unfair). However if the dismissal is only unfair for procedural reasons, the tribunal can make a “Polkey reduction” to any compensatory award, to reflect the percentage likelihood that the employee would have been dismissed even if fair procedures had been followed.

The justification test on a claim under s.15 EqA is narrower in this respect, in that it is the dismissal (or other unfavourable treatment) – rather than the procedure – that must be a proportionate means of achieving a legitimate aim. Even so, failures in procedure may be relevant in deciding whether the dismissal, for example, is justified under s.15: see Objective justification defence>Outcome vs process.

Resignation may be “constructive dismissal”

Constructive dismissal is broadly where the employer has breached the employment contract so seriously that the employee decides to leave in response. Citizens Advice says that getting advice as quickly as possible is likely to be important here: see Claiming constructive dismissal (citizensadvice.org.uk).

As well as any Equality Act claim, there will normally be a claim for unfair dismissal (subject to the qualifying period).

A woman resigns because harassment related to her stammer makes the workplace intolerable. The employer has failed to take action to address the harassment. As well as any Equality Act claim, she may have a claim for constructive dismissal and unfair dismissal.

Crisp v Iceland Frozen Foods [2012] EqLR 618, Employment Tribunal
A conversation between a manager and HR manager making fun of the claimant’s disability was accidentally recorded on the answering service of her home telephone. The tribunal considered that any senior manager demonstrating, even inadvertently, to an employee that they did not consider a disability should be taken seriously was likely to damage the implied term of trust and confidence. This was compounded if, as here, the employee complained about the conduct and the complaint was ignored. The claimant had resigned in response to the treatment. Her claim for unfair dismissal succeeded. (Equality Act claims for unlawful discrimination also succeeded.)
Link: Tribunal decision advises training in mental health (personneltoday.com).

B v Apcoa Parking, Employment Tribunal, 2002-03
The claimant resigned his job as a parking attendant and successfully claimed to the tribunal for unfair dismissal. The tribunal agreed that because of the employer’s conduct the claimant had been constructively dismissed and the dismissal was unfair. A relatively small part of the relevant conduct was that a supervisor had made fun of the claimant’s stammer.

A v Walkers Snack Foods, Employment Tribunal, 2001
A person who stammers claimed that he’d had to resign “because of harassment, verbal bullying by my line manager, which highlighted my disability (speech impediment) (stammer) which I have had all my life…” On the facts, his claim for constructive dismissal failed.

Constructive dismissal is also treated as “dismissal” for the purposes of the Equality Act 2010: s.39(7)(b) EqA.

What if a resignation was not constructive dismissal?

Very often a resignation is not “constructive dismissal”, but an employee can still have Equality Act rights in respect of any discrimination – eg harassment or failure to make reasonable adjustments – which happened during the employment (or potentially after leaving, eg in giving references). However particularly for things which happened before leaving, there will be the issue of whether the claim is within the three-month time limit, and if not whether the tribunal will allow an extension of time.

Redundancy

Redundancy law generally

Legally redundancy is a type of dismissal. The business dismisses the employee because its requirements for employees to carry out work of a particular kind are ceasing or diminishing. (The detail of what counts as redundancy is complicated.) Unfair dismissal law and various other provisions, including the right to a redundancy payment and the Equality Act 2010, apply to redundancy.

Assuming there is genuine redundancy, issues can include:

  • Has the employer consulted properly with the affected employees?
  • Was the employee fairly chosen for redundancy out of all the other employees?
  • Has the employer offered the employee any suitable alternative employment which was available?

Those issues arise whether or not there is possible discrimination contrary to the Equality Act. For more on redundancy generally: Check your rights if you’re made redundant (citizensadvice.org.uk)

Redundancy: Equality Act 2010

How may the Equality Act be relevant in redundancy?

As regards disability, the main thing is that the way in which the disabled person was selected for redundancy should not be discriminatory. Broadly speaking, if a factor in selecting people for redundancy puts the person at a disadvantage for a reason arising from their stammer, the dismissal could well breach the Equality Act unless the employer can show the selection is justified. Potential types of Equality Act claim here include (but are not limited to) discrimination arising from disability (s.15), the duty to make reasonable adjustments, and indirect discrimination (s.19). See Types of discrimination.

An EAT decision on redundancy, Mental Health Care v Biluan (below), illustrates how unreliable competence assessments can be – including oral competence assessments for people who stammer – if one does not look at actual workplace performance, even if no disability is involved. This case was on unfair dismissal rather than the Equality Act, but the tribunal would have examined the employer’s competence assessment even more critically if the outcome was affected by a disability, so that the Equality Act was in play. This is because for unfair dismissal (above) the tribunal only looks at whether the employer’s actions fell within the range of reasonable responses and cannot substitute its own view, whereas under the Equality Act the tribunal makes its own assessment of what is a “reasonable” adjustment, or what is justified under s.15 EqA.

Mental Health Care v Biluan, Employment Appeal Tribunal, 2013
In selecting employees for redundancy, the employer carried out a competence assessment which failed to take into account the opinion of managers who had worked with the relevant employees. Managers found the results “surprising” and considered they had led to the selection and dismissal of some “very good workers”. The employer was held liable for unfair dismissal. An additional contributory factor was that the group “scenario” assessments, carried out without any facilitation, were likely unfairly to favour those employees who had an outgoing personality, and disadvantage those who were “retiring and thoughtful”.

Also reasonable adjustments may be required to enable a disabled person to participate fully in any redundancy consultation and other procedures, for example in any appeal. See Disciplinary, grievance and other procedures.

20th anniversary of stammeringlaw, 1999-2019