Hello and welcome back to your weekly dose of case law. Last week’s newsletter looked at all the changes that came into force this week. It also had a link to our slides which inexplicably did not work for which we apologise. However, the slides and other seminar materials are now available on our website.
This week’s case concerns disability discrimination. In previous cases, we have discussed how an employee can be discriminated against. One form of discrimination is by association and this is what today’s case is about.
This week’s case is a Northern Irish case, another venture abroad following our previous Trinidadian case. However, it is still applicable to cases heard in England and Wales.
Ms McKeith, the Claimant, was a part-time advice assistant for the Ardoyne Association, the Respondent. The Claimant was a single parent with a disabled daughter. The Claimant arranged childcare with a friend during her working hours.
The Claimant’s manager believed that the Claimant should care for her daughter and regularly insisted she take time off. This time off was forced on the Claimant against her wishes. Following a cut in funding, the Respondent made the Claimant redundant.
The Claimant believed the decision was based on the amount of time the Claimant had off. The Claimant felt this was unfair and brought a direct disability discrimination claim to the Tribunal. For discrimination cases, the Claimant must first prove a prima facie case that they were treated differently because of their protected characteristic. The Respondent must then prove that there was a non-discriminatory reason for the treatment.
The ET held that the Claimant was discriminated against because she was the carer of a disabled child and the Respondent failed to put forward any other convincing reason for why the Claimant was made redundant. The Respondent felt the Claimant hadn’t established a case so the burden of proof shouldn’t have shifted and appealed to the Northern Irish Court of Appeal (NICA) (EAT equivalent).
The NICA dismissed the appeal. It held that the ET had rightly found the Claimant being sent home to care for her daughter due to her manager’s belief she should be there, the unconvincing evidence of the manager during the hearing, the fact no redundancy procedure was followed meant that the burden had rightly shifted on to the Respondent. It added that “if this is not a case where the burden of proof should shift, no such case exists!” as the Respondent had clearly committed unlawful discrimination.
The takeaway point:
Making an employee redundant because you believe they should be at home caring for their disabled daughter is an act of direct disability discrimination. Whether the belief was held in good faith, is irrelevant as the employee will want to be working and treated equally.
It is also worth noting that in such cases if the burden of proof does transfer to the employer, they MUST provide a non-discriminatory reason for the unequal treatment, failure to do so will result in them being found to have discriminated against the employee. Like other types of discrimination, disability claims have no cap on awards and thus be very costly.