Home » Website updates July to August 2020

Website updates July to August 2020

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Last updated 30th August 2020.

Stammering starting in adulthood

Disability: Stammering starting in adulthood updated. Also summary of Walker v Sita, 2013 expanded and update of SCA Packaging v Boyle, 2009.

Justification test in indirect discrimination

Indirect discrimination>Justification defence added, plus case on it from a couple of years ago:

City of Oxford Bus Services Ltd t/a Oxford Bus Company v Harvey, EAT, 2018
The employer’s practice of distributing shifts to bus drivers resulted in the claimant, a Seventh Day Adventist, being required to work on his Sabbath. Was the employer’s practice unlawful as indirect religious discrimination? The EAT held that the tribunal should have considered whether the employer’s practice as a whole was justified, not whether the employer was justified in refusing to make an exception for the claimant.

Northern Ireland discrimination law after Brexit transition period

Under the EU-UK Withdrawal Agreement, it seems Northern Ireland discrimination law will have to comply with the Framework Employment Directive even after the end of 2020. The government has published an August 2020 Explainer document (gov.uk) about this, including how the requirement will be enforced. More: Brexit: disability discrimination in Northern Ireland.

City of York Council v Grosset

In Grosset in 2018, the Court of Appeal held broadly that an employer or service provider can be liable under s.15 EqA even if did not know of the causal link with the disability, provided it knew or should have known of the disability itself. The decision was on this website before, but I’ve expanded the coverage of it:

Also I’ve added a previous case which reached the same conclusion as Grosset:

Pnaiser v NHS England, EAT, 2016
A prospective employer withdrew a job offer because of a comment by a previous line manager that the claimant was unsuitable for the new job. Unknown to the prospective employer, that comment was influenced by the claimant’s disability. The EAT held the prospective employer‘s withdrawal of the offer was discrimination under s.15 even though it did not know of the causal link with the disability.

Thought processes of employer

Whose thought processes should the tribunal look at in deciding why the employer acted in the way it did? I’ve expanded Direct discrimination>Mental process of decision-maker, and have added a whistleblowing case to it:

Royal Mail v Jhuti, Supreme Court, 2019
In this case (not on the Equality Act) the court was willing to look at the motivation of the claimant’s line manager, even though he was not the person who made the decision to dismiss.

These rules should be relevant for discrimination arising from disability under s.15 (below) as well as for direct discrimination.

Further cases on discrimination arising from disability

I’ve added further cases on discrimination arising from disability (s.15), though not necessarily recent:

Chief Constable of Gwent Police v Parsons, EAT, 2020.
A case where disabled police officers where able to show that imposing a cap on a payment for voluntary redundancy was “unfavourable treatment”, despite the Supreme Court decision in Williams.

Russell v College of North West London, EAT, 2014
A redundancy case where modified Bradford scores were used to assess sickness absence, but even disregarding the claimant’s disability-related absence she would still have been selected for redundancy. The EAT held there was not the causal connection required by s.15. But it might be argued the EAT failed to apply the wording of s.15.

iForce v Wood, EAT, 2019,
A controversial decision where the EAT held there was not the required causal connection with the disability because the worker was mistaken in her belief that proposals by the employer (to which she objected) would exacerbate the disability.

Risby v LB Waltham Forest, EAT, 2016
The offensive language which was the reason for the claimant’s dismissal was partly a consequence of his disability and partly the consequence of a personality trait. Even so s.15 applied.

Cases illustrating that the disability-related reason need not by the only reason for the unfavourable treatment:

Baldeh v Churches Housing Association, EAT, 2019
One of five reasons why the claimant was dismissed at the end of her probationary period was her communication with colleagues, which she said was related to her depression. Even so s.15 could apply.

South Warwickshire NHS Foundation Trust v Lee, EAT, 2018
A nurse’s job application was rejected because of two references, only one of which related to her disability. The employment tribunal was entitled to find that the employer’s decision was based on both references, and s.15 applied.

‘Because of’ in discrimination arising from disability (s.15)

Two Court of Appeal cases added (below), and Discrimination arising from disability>’Because of…’ (under s.15 EqA) updated as regards the need to focus on the employer’s thought processes, conscious or unconscious, like in direct discrimination.

Robinson v Department for Work and Pensions, Court of Appeal, 2020
An employment tribunal had held that (among other things) a delay in dealing with an internal grievance on disability was unlawful discrimination under s.15. The Court of Appeal overturned the decision. In deciding whether the employer’s reason for the delay was something arising from disability, the tribunal should have considered the employer’s thought processes. The delay in dealing with the grievance was deplorable but not discriminatory.

Dunn v Secretary of State for Justice, Court of Appeal, 2018
An early retirement application resulting from a disability was “very poorly handled”, taking a very long time. The court held that mishandling of a disability matter such as this is not normally a breach of ss. 13 or 15 EqA unless the employer’s “motivation” for its action or inaction was the disability or something arising from it. One must look at the employer’s thought processes. Failures in the present case due to incompetence or other mishandling were not discriminatory.

Coronavirus

New page on Face masks/coverings and stammering, including:

  • difficulties and possible solutions for people who stammer wearing face masks and coverings,
  • how far the disability exemption for face coverings on public transport and shops etc in England could apply,
  • other businesses, health services etc requiring customers to wear a face covering,
  • workers required by their employer to wear a face covering.

Also Coronavirus (Covid-19) page updated.

Jobs done by people who stammer

Additions to Examples of jobs done by people who stammer/ stutter:

Reasonable adjustments: what is a PCP?

In Ishola v Transport for London the Court of Appeal considered whether a one-off act could be a “provision, criterion or practice” (PCP) giving rise to a reasonable adjustment claim.

The court said that a “practice” does not need to have been applied to anyone else. However it should carry with it an indication that it will or would be done again in future if a similar case arises.

Recommendations

In Hill v Lloyds Bank (bailii.org), 2020, the Employment Appeal Tribunal (EAT) took a broad view of what type of recommendation an employment tribunal can make.

Here the EAT held a tribunal had power to recommend that the employer give an undertaking that the employer would not require the claimant to work with either of two former line managers with whom she had problems and, if at a later stage there was no alternative, that she would be offered a severance package equivalent to that provided on redundancy. More on the Hill case: Remedies in employment disputes>Recommendations.

Brexit: Which courts can depart from EU case law after the end of 2020?

On 2nd July the government issued a consultation document on this: Retained EU Case Law: Consultation on the departure from retained EU case law by UK courts and tribunals (pdf, gov.uk).

Legislation already says that when the Brexit implementation period ends at the end of this year, the Supreme Court can depart from previous (ie before 1st January 2021) EU case law where it can depart from its own case law. The Supreme Court sees its own case law as “normally binding” but can depart from it “when it appears right to do so”. This consultation proposes that either the Court of Appeal should be able to depart from this EU case law too (option 1), or both the Court of Appeal and the High Court should be able to do so (option 2). The consultation invites views on whether any other courts should be added under either option. Equivalent courts in other parts of the UK would also be included in the regulations.

The consultation proposes that any courts allowed to depart from this EU case law should apply the same test as the Supreme Court, so in effect they too would normally follow the pre-January 2021 EU case law. It is different if the UK has amended the relevant UK legislation after 2020 – amendments to UK law can override EU law (unless the UK agrees otherwise with the EU).

More: Brexit and disability discrimination under Equality Act 2010>Regulations allowing departure from EU case law.

20th anniversary of stammeringlaw, 1999-2019