Good morning, and welcome back to your weekly case law update – the perfect start to any Friday. Last week we looked at mobility clauses and unfair dismissal. This week we will be looking at alleged disability discrimination and harassment.
Our previous update of G4S v Powell explains that S6 of the Equality Act 2010 defines a disability to mean a physical or mental impairment that has a ‘substantial’ and ‘long-term’ negative effect on a person’s ability to do normal day-to-day activities. For the purposes of the Act ‘substantial’ means more than minor or trivial and ‘long term’ means more than twelve months.
A few weeks ago we covered the case of Garredu v London Underground, it contained a useful guide about what forms discrimination can take. In summary, discrimination can be direct – Section 13 of the Act (not employing someone because of their disability), section 15 unjustifiable treatment relating to a disability and indirect – Section 19 (a policy that inadvertently discriminates against a disabled employee), harassment – Section 26 (employees feeling humiliated, offended or degraded because of their disability) and victimisation – Section 27 (where an employee is treated badly after making a complaint of disability discrimination). Like all discrimination claims, there is no cap on the compensatory award.
This case focuses on harassment, the alleged disability discrimination claim and asks:
Can an employee successfully bring a harassment claim due to their alleged disability without establishing they are disabled for the purposes of the Equality Act 2010?
Mr Baker, the Claimant, was a Lawyer for Peninsula Business Services Ltd, the Respondent, an Employment Law and HR Services provider. Don’t worry, the irony that an Employment Law provider has had an ET claim against them isn’t lost on us. In fact, this is the second time this Respondent has been in the EAT in the past twelve months!
Throughout his employment, the Claimant had acted for Client’s privately, not on behalf of the Respondent. The Respondent had a system for doing private cases and the Claimant always asked their permission to do private work and accepted their decision if they refused.
After four years’ service, the Claimant told his line manager he was dyslexic. He then told another manager that he would not be able to carry out a case because of his dyslexia. He asserted this was a disability and provided a psychologist’s report confirming his dyslexia.
The Claimant was referred to the Respondent’s occupation health provider and completed a form to describe his condition, suggest any adjustments and ascertain whether or not he was disabled for the purposes of the Equality Act. The occupational health assessor held he was likely to be disabled and suggested some adjustments.
The Claimant’s manager believed he had engineered the occupational health assessment and put words in the Doctor’s mouth to prevent him from advocating on cases lasting longer than three days. The Respondent instructed a Private Investigator to survey covertly the Claimant to try and catch him engaging in private case work whilst being paid by the Respondent.
The surveillance report came back finding that the Claimant had not been doing private work. It did find that on four occasions the Claimant went to his Mother’s house for periods between one to three hours. The Respondent held the Claimant was not devoting his time to the Respondent and invited the Claimant to a disciplinary hearing.
At the hearing, the Claimant was told he had been covertly followed. He said knowing he had been followed had a profound effect on his well-being and believed the reason he had been followed was because he had mentioned his disability. He initiated an ET claim for harassment on the grounds of his alleged disability discrimination.
The ET upheld the claim. It rejected the Respondent’s witness evidence that they did not know the Claimant was disabled when they commissioned the surveillance. Instead, it held that ‘the extraordinary step of arranging covert surveillance on an employee who had been working for the company for five years and whose appraisals had been consistently favourable cannot have been triggered by anything other than the suspicion that the Claimant was not disabled.”
The Respondent appealed and the EAT allowed the appeal. It found that the Claimant had merely asserted his disability and was therefore not protected from discrimination. As our summary of Garredu states, the only people protected from discrimination are those who have a disability, those associated with a disabled person (by marriage or otherwise) and those who are perceived to be disabled.
The takeaway point:
No, an employee is only protected against discrimination if they have a disability (protected characteristic), are associated with someone with a disability or are perceived to have a disability. Merely asserting you are disabled doesn’t count!
This decision seems harsh as the Claimant in this case not only asserted he was dyslexic but also had the psychologist and occupational health reports to substantiate his claim. This case is also a reminder about the dangers of using covert surveillance, an issue that has been covered in our updates in the past.
Attend our Seminar, advise on HR
Whilst we have your attention. If you enjoy our case law updates, and, would like to find out more about how recent EAT decisions have impacted HR, then you might want to attend our seminar on 30th March 2017.
There will also be sessions on how to efficiently tax settlement agreements, the apprenticeship levy, gender pay gap reporting and how to exit a director. The seminar is free to all attendees and will be presented by Employment Law advisors who have only been in the EAT to act for clients, not defend their own conduct like the Respondents in this update!
To find out more, or book tickets click here. We hope to see you there.