Bodis v Lindfield
In Bodis v Lindfield the EAT held that under s.15 EqA, unfavourable treatment can be “because of” something arising from the disability even though the something is only a minor component of the reason for the unfavourable treatment, provided it is “significant” so as to be an “effective cause”. S.15 could apply even though the main reasons for dismissing the claimant in this case were not disability-related.
Also updated on this: Discrimination arising from disability (s.15 Equality Act)>”Because of…”: Need not be the only reason for the unfavourable treatment.
Labour’s plans for disability equality law
Labour’s plans for disability equality law outlines changes relevant to disability discrimination under the Equality Act which Labour propose to make if they win the July 2024 election.
Liability for agent under s.109 EqA
Added Anderson v CAE Crewing, 2024, where the EAT accepted that someone may be an agent (for whose acts the principal is liable under the EqA) even if they are an independent contractor. Thus the test for vicarious liability in tort as set out in Various claimants v Barclays did not apply.
Liability of employees under s.110
In Baldwin v Cleves School [2024] EAT 66, a school was held liable for disability discrimination under the EqA, but the tribunal said that individuals who committed the discriminatory acts were not liable. Their actions, though discriminatory and in part misguided, were nothing other than attempts to address a complex situation. The EAT held the individuals must be liable under s.110 EqA, as they had not argued the defence in s.110(3) applied. The tribunal did not have a discretion to find individuals not liable where the statutory conditions for their liability were met. Added to Who is liable under the Equality Act>Claiming against employee or agent (s.110).
Disability being perceived as dishonesty in court
Added Habib v Dave Whelan Sports, 2023 (previously just noted on Appearing in court with a stammer). The claimant made various employment tribunal (ET) claims, which the ET rejected. The Employment Appeal Tribunal (EAT) said the ET had relied on behaviour which could arise from the claimant’s dyslexia as a reason to doubt her evidence, without considering the Equal Treatment Bench Book. The ET hearing was unfair, and there must be a retrial. Links:
- Habib: the ETBB strikes back! (lag.org.uk) by John Horan
- Appearing in court with a stammer>Mistaking stammering for dishonesty – which is still not updated for this case.
When is a “volunteer” within the EqA?
Added Groom v Maritime and Coastguard Agency, 2024, where the EAT held that so-called volunteers for the Coastguard Rescue Service were workers (as having a contract to personally perform services) at least so far as the relevant activity entitled them to an hourly rate of pay. The EAT left open the position for other activities. The case was not on the EqA, but should also mean the claimant would be within the EqA.
Jurisdiction
In Stena Drilling PTE v Smith, the EAT said that to have jurisdiction in an Equality Act (EqA) claim, an employment tribunal needs “international jurisdiction” (under ss.15C or 15D CJJA if the dispute relates to an individual contract of employment), and also the dispute must fall within the territorial reach of the EqA under cases such as Lawson and Ravat (“territorial jurisdiction”). One of these alone is not enough to give jurisdiction.
Also some updates of Connection of employment with Great Britain, including:
- Complications of jurisdiction and choice of law, with “international jurisdiction” under Stena Drilling, and s.15C CJJA
- Terminology: territorial scope, jurisdiction, and choice of law,
- Regulations: UK offshore work, and
- Added to “Sufficient connection”: Peripatetic workers: EAT decision in Yacht Management Company Ltd v Gordon (bailii.org), 2024, discussed for example at Yacht Management Company Ltd v Gordon – where does the Employment Tribunal have territorial jurisdiction? (penningtonslaw.com). However, the tribunal and EAT there seem to have failed to take into account the 2011 EqA ships regulations, as discussed at Employment claims out at sea: Was the Tribunal sailing in the wrong direction? (burnesspaull.com), April 2024.
“Unfavourable treatment” in s.15 EqA
Added Clifford v IBM United Kingdom, [2024] EAT 90 (no increases of payments under a Disability Plan) and Cowie v Scottish Fire and Rescue Service [2022] EAT 121 (conditions on special leave for disabled people “shielding” during Covid pandemic). They apply the principle that treatment which is advantageous cannot be said to be “unfavourable” within s.15 EqA merely because it could have been more advantageous. In Discrimination arising from disability (s.15 Equality Act)>Technical note: Treatment not as favourable as it might have been.
Examples of jobs
Added to Examples of jobs done by people who stammer/ stutter:
- Music producer and musician: “Invisible wall”, my song about stammering (stamma.org), May 2024
- Writer and researcher John Gannon: From Beatings to the BBC (stamma.org), April 2024, including being filmed for BBC programmes
- Barrister Ashley Murray: Where there’s a will (stamma.org), May 2024
- On Aneurin (“Nye”) Bevan, noted for spearheading the creation of the NHS in 1948, link to Nye: theatre review (stamma.org), 2024. This play Nye – at the National Theatre with Michael Sheen, also available in cinemas (nye.ntlive.com) – very much includes his stammer.
Remainder of REUL Act taking effect from October 2024
S.6 Retained EU Law Act 2023 is to take effect from 1st October 2024, under SI 714/2024. S.6 includes provisions on when higher courts in the UK can depart from EU Court decisions, which may encourage higher courts to depart from EU case law more often, potentially reducing protection under the EqA and creating greater uncertainty. S.6 also includes new mechanisms to refer to higher courts questions of whether to depart from EU Court decisions, which may create delays. See Retained EU Law Act 2023>Easier for UK higher courts to override EU cases, and referral system.
Also later amended to include link to The role of the courts regarding assimilated law from October 2024 (eurelationslaw.com, June 2024.
EU law in Northern Ireland
Brexit: disability discrimination in Northern Ireland updated, particularly on the effort of the Windsor Framework (and its requirement to continue to comply with EU anti-discrimination directives) in the light of Re Northern Ireland Human Rights Commission, 2024. That NI High Court decision disapplied in Northern Ireland a British statute which was held not to comply with the Windsor Framework.
Old EU cases on meaning of “disability”
My pages on Ring v Dansk almennyttigt Boligselskab and Chacón Navas v Eurest Colectividades SA updated to reflect the fact that the EqA has been amended (from January 2024) to take account of the EU court’s definition of disability.
Also Blackwood v Birmingham and Solihull Mental Health NHS Foundation Trust updated to include uncertainty after Brexit.
- Previous updates Website updates March to April 2024.
