In the first appeal case on direct disability discrimination, the Employment Appeal Tribunal considered what amounted to less favourable treatment for the purposes of direct discrimination. (Where there is direct discrimination, the employer has no justification defence.)
Employment Appeal Tribunal, 2006. Full judgment: bailii.org.
Facts
The claimant was a support worker in a residential home providing specialist services to people with certain mental disabilities. Support workers were sometimes scratched or bitten by these service users.
The claimant was HIV positive. He did not tell the employer this when he applied for the job. He disclosed it subsequently and was suspended. He was later dismissed following a risk assessment.
Department of Health guidance issued in 2005 said that individuals infected with blood-borne viruses should not be prevented from working in specialties where there was a risk of being bitten. However, the evidence was dynamic and the area would be kept under review.
The employment tribunal found the employer liable for direct discrimination, disability-related discrimination (the employer’s actions were not ‘justified’), and failure to make reasonable adjustments.
Employment Appeal Tribunal (EAT) decision
Direct discrimination
Direct discrimination An employer “directly discriminates” against a disabled person if, on the ground of his disability, the employer treats him less favourably than the employer treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person. More on direct discrimination…
Where there is ‘direct discrimination’, the employer has no justification defence. The EAT made some comments on the employment tribunal’s approach to direct discrimination.
The EAT said that the tribunal had been mistaken in looking at whether (on the ground of his disability) the complainant had been treated less favourably than another person with a communicable disease. The circumstances of the claimant and the comparator must be the same or not materially different. The tribunal should therefore have looked at how the employer would have treated a person with some attribute, not caused by HIV, carrying the same risk of causing to others illness or injury of the same gravity, here serious and possibly fatal. The attribute might or might not be caused by a medical condition. If the tribunal found that this comparator would also have been dismissed, then the claimant had not been less favourably treated for the purposes of direct discrimination. In other words, there would be no direct discrimination and one would go on to look at whether the employer’s actions were ‘justified’.
The EAT also said that the burden of proof would not shift to the employer unless the claimant proved some evidential basis upon which it could be said by the tribunal that such a comparator would not have been dismissed.
The EAT also considered the tribunal’s finding that “the suspension and dismissal…was more likely to have been on the grounds of the effect of his condition, in order words, the risk of transmission, rather than the condition itself” to be inconsistent with direct discrimination. The issue in the present context was whether the claimant was suspended and dismissed because of his condition i.e. being HIV postive, or because of the risk of transmission of that condition to others.
However, it was not really relevant in this case whether there was direct discrimination because the EAT upheld the employment tribunal’s decision that the dismissal was in any event unjustified:
Justification
The EAT considered the Court of Appeal decision in Jones v Post Office, saying that an employer’s reason for dismissal (or other less favourable treatment) would be treated as ‘substantial’ unless it fell outside the band of responses which a reasonable employer might have adopted.
The EAT rejected the employer’s argument that the employment tribunal in the present case had departed from that approach by substituting its own view for that of the employer. The EAT said that the tribunal here had applied what might be described as an ‘unfair dismissal’ approach, and had plainly decided that the employer did not act reasonably because it failed to carry out a proper investigation or adequate risk assessment.
In particular, the employment tribunal had found that the risk assessment was not directed at the relevant and specific question in respect of the claimant’s condition, the claimant’s doctor’s opinion was not taken into account by the employer, and the employer did not follow guidance available to it to obtain the opinion of an occupational specialist.
Reasonable adjustments
Finally, the EAT upheld the employment tribunal’s finding that the employer had failed to make reasonable adjustments.
My comment
This is the first appeal case on the direct discrimination rules which came into effect in October 2004. The importance of direct discrimination is that the justification defence does not apply. There will doubtless be further cases clarifying the new rules.
