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Employer failed to make reasonable adjustments to redeploy disabled employee being made redundant

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The Employment Appeal Tribunal has held that an employer failed to make reasonable adjustments to redeploy one of its disabled employees who was at risk of redundancy and could not attend interviews. The EAT held that the employer should have made reasonable adjustments and offered an alternative way of assessing the employee’s suitability for redeployment roles, even though the employee had been unresponsive when HR suggested alternative roles.

Mr Charles worked at the London Borough of Southwark as an environmental enforcement officer. In March 2011, Southwark informed Mr Charles that he was being made redundant. The Council had certain posts which it had ring-fenced for redeployment opportunities. On 10 May 2011, the Council informed Mr Charles that his employment was due to terminate on 3 August 2011. Three days later, Mr Charles’ GP signed him off work for a period of three months because Mr Charles suffered from “sleep paralysis agitans” which meant that he woke up at night paralysed and he also suffered from depression.

Employees in Mr Charles’ pool were invited to interview for a Noise Support Officer post. Mr Charles did not express an interest in an interview. The Council referred Mr Charles to its occupational health provider, Atos. On 25 May 2011, Atos advised that no adjustments were required. Later, on 17 June 2011, Atos advised that Mr Charles could not attend administrative meetings.

On 4 August 2011, the Council informed Mr Charles that his termination date had been pushed back to 26 August 2011. HR at the Council then made several attempts to contact Mr Charles in relation to the Noise Support Officer role. Although Mr Charles did ask some questions in relation to the role, he did not reply to repeated requests from HR to confirm whether or not he would be interested in it and, if so, when he would be fit to attend an interview. HR also emailed Mr Charles other role details and called him but did not receive a response. On 25 August 2011, the Council sent a letter to Mr Charles confirming his employment would terminate the following day in the absence of an expression of interest in an alternative role.

Mr Charles brought a claim for discrimination on the grounds of disability, namely the failure of Southwark to make reasonable adjustments when considering redeployment opportunities.

The EAT held that the Council’s practice of requiring those at risk of redundancy in the redeployment pool to attend interviews was a practice which put Mr Charles at a considerable disadvantage as a result of his disability (which prevented him from attending interviews for alternative roles). The EAT held that Mr Charles should not have been subjected to a formal interview process and that the Council should have assessed his suitability for redeployment through alternative means.

London Borough of Southwark v Charles UKEAT/0008/14

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Advocate General thinks severe obesity may be a disability

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The Advocate General has given an opinion that ‘severe’ obesity could amount to a disability under the Equal Treatment Framework Directive. He thought that only people with a body mass index of 40 or over would suffer sufficient hindrance to participation in professional life to be considered disabled.

Mr Kaltoft worked in the Municipality of Billund in Denmark as a child-minder. He had a body mass index of 54 and was classed as having “severe, extreme or morbid obesity”. He alleged that his employment was terminated by the Municipality of Billund because of his obesity and he brought a discrimination claim.

The Advocate General said that there was no “stand alone” principle of EU law prohibiting discrimination on the grounds of obesity. In other words, “fatism” itself is not unlawful.

However, the Advocate General opined that people suffering from extreme forms of obesity may meet the definition of disability. He thought that it was likely that most forms of obesity would not qualify as a disability under the legislation but that severe, extreme or morbid obesity would as it could create mobility and endurance problems. He also opined that it is irrelevant how the obesity was caused i.e. whether it was due to excessive calorie intake or a metabolic or psychological problem.

The European Court’s decision on this case has not been made but the Court usually follows the Advocate General’s opinion.

Kaltoft v Municipality of Billund (C-354/13)

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There is no requirement for employers to make reasonable adjustments for non-disabled employees who care for disabled people

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A decision by the Court of Appeal confirmed that an employer was not under an obligation to make reasonable adjustments for a non-disabled employee whose daughter had Down’s syndrome. The Court of Appeal held that although employers are under a duty to make reasonable adjustments for their employees who have disabilities, they are not under an obligation to make reasonable adjustments for an employee who does not have a disability but is associated with someone who does.

The claimant, Ms. Hainsworth, was an employee of the Ministry of Defence based in Germany. As part of her employment package, the MoD provided facilities to educate the children of its employees who were not based in the UK. The claimant’s daughter had Down’s syndrome and the schools provided by the MoD were not suitable for her needs. In 2011, the claimant made an application to be transferred to the UK in order that she could better meet her daughter’s needs. This request was rejected by the MoD.

Ms. Hainsworth made a claim to the Court of Appeal, arguing that the law required the MoD to make a reasonable adjustment for an employee associated with a disabled person. Employers are required to make reasonable adjustments for disabled workers.

The Court of Appeal held that the MoD and employers generally were not obliged to make reasonable adjustments for employees who are associated with disabled people (although they did say that it would be good practice for the employer to do what it could to assist).

Hainsworth v Ministry of Defence [2014] EWCA Civ 763

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Employment Tribunal holds that tribunals should consider the mental processes of those influencing decision makers

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The Employment Appeal Tribunal (‘EAT’) held that when considering whether a dismissal was discriminatory on the grounds of age, tribunals should consider the mental processes of those influencing the decision makers, as well as the decision makers themselves.

The claimant, Dr Reynolds, aged 77, worked as the Chief Medical Officer on a consultancy basis for Canada Life for over 20 years. A presentation was made by other employees at the respondent which highlighted deficiencies in the services performed by the claimant and following this presentation, the UK General Manager of the respondent decided to terminate her consultancy agreement. Dr Reynolds brought a claim arguing that she had been directly discriminated against because of her age.

Canada Life called the decision maker, the UK General Manager, to give evidence. The Tribunal was satisfied that he was not himself age prejudiced. However, he had clearly been influenced by others who had not given any evidence.

The EAT held that as the views of others played a significant role in the decision of the General Manager to dismiss the claimant, Canada Life had not discharged the burden of proof on an employer to show that discrimination played no part.

The upshot is that when defending a discrimination complaint, an employer must examine the motives both of the decision maker and those that influenced him or her. If either have been influenced by unlawful prejudice or the employer fails to put forward evidence both from the decision makers and the influencers, the employer will be exposed.

Reynolds v CLFIS (UK) Ltd and others UKEAT/0484/13

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Arpita Dutt’s success for Whistleblowing Surgeon who wins his Unfair Dismissal and Disability Discrimination Claim

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An employment tribunal has ruled that a respected surgeon was unfairly dismissed after whistleblowing on poor standards of care at a hospital.  The case has been reported in The Sunday Times, The Independent, Health Service Journal and Hospital Doctor. Arpita Dutt and her client, Mr Weerasinghe were also featured on BBC London News on 14 July 2014.

Arjuna Weerasinghe is now in the process of preparing for a further hearing to determine compensation after winning his claim against Basildon and Thurrock University Hospitals NHS Foundation Trust (BTUHT).

BTUHT was one of 25 Trusts highlighted by the Care Quality Commission (CQC) as requiring urgent investigation over high mortality rates in 2010. It has recently come out of ‘special measures’.

Mr Weerasinghe, a cardiothoracic surgeon raised concerns in 2010 over poor patient care and filthy operating theatre conditions at Basildon Hospital in Essex.

The matter came to a head when vital theatre equipment was unavailable when he performed an operation on a patient who subsequently died three days later. Mr Weerasinghe reported the incident and subsequently wrote a detailed report for the Coroner however, in breach of National Patient Safety Association Guidelines, the death was never reported by the Trust as a serious untoward incident (SUI).

It then took BTUHT 14 months to respond to a Coroner’s request for information about the case and its initial investigation internal report was altered to remove a sentence exonerating Mr Weerasinghe from any blame. The tribunal found that the altered report sent to the Coroner played down the patient incident.

The original author had also been asked by a senior manager to provide “a ‘quick and dirty’ response” which the tribunal said was a request to “get rid of the matter quickly and quietly” and was motivated by the Trust being “concerned about … potential exposure to litigation”. The tribunal determined that BTUHT continued to be primarily concerned about criticism of the hospital if it were found that faulty or inadequate equipment had possibly contributed to the patient’s death.

Mr Weerasinghe went on sick leave due to a chronic chest condition brought on by pneumonia, which was believed to have been contracted in a dirty operating theatre at the hospital. During his sick leave, without any financial gain or loss to BTUHT, he attended CPD courses and a job interview in Cork.  None of these matters were found to be against BTUHT policy. Mr Weerasinghe was dismissed in November 2012 after a protracted disciplinary process.

BTUHT were unable to establish that the decision to subject Mr Weerasinghe to a disciplinary investigation was on grounds of genuine concern about his conduct. The tribunal found that his whistleblowing disclosures about the patient incident were a material influence in the decisions to subject him to a disciplinary investigation from November 2011 onwards and also requiring him to attend a disciplinary hearing in November 2012. The tribunal found that he had been subjected to the entire disciplinary process because he had raised whistleblowing concerns.

The tribunal heard the dismissing manager, who was also a fellow Trust Consultant, had refused to read a three page report from Mr Weerasinghe’s GP prior to the disciplinary hearing, arguing it would have taken 30 minutes to do so.

This was rejected by the tribunal as “so illogical as to lack any credibility” and it was added that the dismissing manager’s evidence had “changed regularly and in many cases was simply not credible”. The dismissal was found to be unjustifiable discrimination arising from Mr Weerasinghe’s ill health.

Mr Weerasinghe said: “I believe my public interest disclosures regarding the unavailability of appropriate equipment and material in this case were a major influence in the decision to investigate and then dismiss me.

It has been a very difficult time for me and my family. The extreme efforts made by senior individuals at Basildon Hospital over the past four years have worked towards tarnishing my credibility, reputation and professional career and have had crippling effects.”

Arpita Dutt, Partner added: “The judgment exposes a catalogue of failures by senior individuals in this Trust. In my opinion, it also exposes a lack of credibility, arrogance and manipulation of processes that have led to unanswered questions around the death of a patient and the loss of a 20 year career for a dedicated surgeon who was seeking to protect patients and carry out his job to the best of his abilities. It is the worst dismissal I have seen in 17 years”.

Mr Weerasinghe was represented by barrister, Lydia Seymour of Outer Temple Chambers.

To read more about the case see:

The Independent

The Sunday Times

Hospital Doctor

To read more about progress towards further protection for whistleblowers click here and here.

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Court of Appeal rules that poor treatment of vulnerable migrant workers because of their immigration status was not race discrimination-outs?

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The Court of Appeal has held that the poor treatment of vulnerable migrant workers because of their immigration status is not race discrimination.

Miss Onu was a Nigerian migrant worker who was exploited by her employers who failed to pay her minimum wage, did not provide appropriate accommodation and told her that if she tried to leave she would be arrested and imprisoned. Miss Onu brought race discrimination claims. After bringing these claims, her employer had telephoned her sister and said that ‘she would suffer for it’ resulting in Ms Onu bringing a victimisation claim.

The EAT held that Ms Onu had not been discriminated against directly because of her race and found that her poor treatment was not the immediate cause of her treatment which had been because of her subordinate position and earlier life. It upheld Ms Onu’s victimisation claim holding that the fact that her employer had not directly referred to Ms Onu’s discrimination claim in his call did not mean that there was no victimisation.

Mrs Taiwo was working on a Nigerian domestic worker visa for a Nigerian man and his wife. She was paid less than minimum wage, subjected to verbal and physical abuse, denied breaks and had poor living and working conditions. She resigned claiming direct and indirect race discrimination. These claims were rejected by the tribunal which held that: (i) there was no direct race discrimination because she had not shown that the treatment she received was because of her nationality, rather, the reason was her status as a vulnerable migrant worker; and (ii) there was no indirect race discrimination because she did not show that people of Nigerian origin were more likely to be employed on a domestic visa in comparison to persons of non-Nigerian origin. The EAT upheld both of these arguments.

On appeal, the Court of Appeal held that there was no race discrimination in either case. In relation to direct race discrimination, it found that on the facts it was clear that the employers were influenced by their employees’ immigration status in their treatment of them and whilst there was sufficient evidence of this, that did not amount to a finding that they were mistreated because of their nationality. The Court of Appeal also upheld the EAT’s decisions in both cases that there was no indirect discrimination. Indirect race discrimination occurs where an employer operates a provision, criterion or practice which although theoretically applicable to all nationalities, in practice affects one or more groups worse. The court said the mistreatment of migrant domestic workers was not a provision, criterion or practice and therefore the terms of the Equality Act 2010 would not extend to it. However, the Court of Appeal did uphold Ms Onu’s claim for victimisation and held that the tribunal ought to have considered that he was aware of the race discrimination proceedings when he made the call to Ms Onu’s sister.

Onu v Akwiwu and another; Taiwo v Olaigbe and another [2014] EWCA Civ 279

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Error in employer’s letter to disabled employee not relevant when considering objective justification

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In Crime Reduction Initiatives (CRI) v Lawrence UKEAT/0319/13, the EAT held that a poorly drafted letter inviting the claimant to a disciplinary meeting when it should have referred to a capability meeting which had the effect of deterring her from attending was not relevant to the question of whether her employer had been objectively justified in deciding to dismiss her.

Ms Lawrence was suffering from post-natal depression and occupational health at CRI assessed her as having a long term disability and unable to return to work. CRI then began a capability procedure. Unfortunately, the letter inviting Ms Lawrence to this hearing was phrased as though it were an invitation to a disciplinary procedure. Ms Lawrence declined to attend the meeting which proceeded in her absence and afterwards her employer dismissed her on the grounds of ill-health.

Following her dismissal, Ms Lawrence brought a claim for unfair dismissal and discrimination arising from disability. The tribunal upheld her unfair dismissal claim on the basis that the letter had discouraged her from attending her capability hearing. On a majority ruling, the tribunal also upheld her discrimination claim on the basis that the dismissal was not objectively justified because it was not a proportionate means of achieving a legitimate aim. It held that although it had a legitimate aim of managing its workforce and delivering a service, Ms Lawrence had not been consulted appropriately. However, the tribunal found that Ms Lawrence would have been fairly dismissed if she had attended the meeting so only made a basic award for her unfair dismissal and an injury to feelings award of £750.

On appeal, the EAT confirmed the decision in HM Prison Service v Johnson [2007] IRLR 951 that procedural questions are irrelevant to dealing with objective justification. It held that the letter was procedural and did not relate to the decision to dismiss Ms Lawrence and, given that the tribunal had made a finding that the dismissal was inevitable and pursuant to a legitimate aim, it was not relevant to a ruling on objective justification.

However, employers should be wary of such letters as had the employee argued that the letter was a detriment rather than the decision to dismiss, the case could have been decided differently.

Crime Reduction Initiatives (CRI) v Lawrence UKEAT/0319/13)

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Dismissal for absence caused by post-natal depression was not discriminatory

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The EAT recently held that it is not discriminatory to dismiss a woman for absence due to post-natal depression where that absence continues after the end of her maternity leave. Where an employee is absent after her maternity leave due to a pregnancy related illness, the employer is entitled to take into account the absence after maternity leave and compare that period with any period of sickness of a man.

The claimant, Ms Lyons, worked as an advisor for a job centre. Prior to her pregnancy, she had suffered from depression which had led to several periods of sickness absence. She later became pregnant and was due to return to work at the end of her maternity leave on 17 September 2010. Following the birth of her child, Ms Lyons was diagnosed as having ‘moderately severe post-natal depression’. She was still suffering from this in September 2010 and her GP signed her off on sick leave. She did not return to work and her employer dismissed her on capability grounds in March 2011.

Ms Lyons brought claims for pregnancy discrimination, direct sex discrimination and unfair dismissal. The EAT held that although she had been unfairly dismissed, she had not suffered pregnancy discrimination as the treatment of her employers towards her occurred some months after the end of her period of maternity leave. It also found that there was no sex discrimination as to succeed in such a claim, Ms Lyons would have to establish that the employer had treated her absence in a way that was less favourable than it would have treated a hypothetical or actual male comparator with the same absence. Ms Lyons had not argued that she had been treated less favourably than a hypothetical male comparator and therefore her claim for sex discrimination could not succeed.

The decision confirms that there is no additional protection under the Equality Act for periods of pregnancy-related illnesses which are outside the period of maternity leave.

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Caste discrimination covered by existing legislation

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In Tirkey v Chandok, it was found that a claim for caste discrimination could be brought in a Tribunal under the Equality Act 2010.

Ms Tirkey was employed by the Chandoks as a servant. She is part of the Adivasi caste, which is known as a servant caste. The caste system divides people into separate groups based on birth, marriage and occupation. Ms Tirkey alleged that she was required to work seven days a week from 6am to 12.30am, sleep on the floor on a piece of foam, and in four years was paid £3,140. She brought a caste discrimination claim against the Chandoks arguing that she was treated like this because the Chandoks considered her to be of a lower status than them. The Chandoks applied to strike out the claim on the grounds that there was no legislation outlawing caste discrimination.

The Tribunal allowed Ms Tirkey’s caste discrimination claim to proceed on the basis that it could be covered under the head of ‘race discrimination’. The definition of ‘race’ in the Equality Act is wide and includes ‘colour, nationality, ethnic or national origin’. As such, there is scope for arguing caste could also be included under this heading.

Unless this case is overturned, employers should note that there is a new type of discrimination that they could be liable for should any worker subject another worker to caste discrimination. To safeguard against any claim for vicarious liability, the same rules apply: that employers take reasonable steps to prevent such acts or omissions from occurring. This starts with having an equality and diversity policy and ensuring managers receive diversity training.

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Employers’ liability for its agents in discrimination claims

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In discrimination cases, employers are responsible for the actions of both employees and their agents. But who is an employer’s agent?

In Kemeh v MoD, the Court of Appeal held that the common law test applies when working out whether someone is an agent for the purposes of discrimination law. The question therefore is ‘Was there a fiduciary relationship which exists between two people where both expressly or impliedly consent for one to act on behalf of the other?’ This is likely to be a very limited group of people.

Mr Kemeh, a black man, worked as an army chef for the MoD, and brought a claim for race discrimination against the MoD based on two incidents:

• The MoD contracted out its catering to Serco who sub-contracted to Sodexho. Ms Ausher worked as a butcher for Sodexho. When Mr Kemeh ordered meat from Ms Ausher, he was asked ‘Why should I trust you…you are black.’
• Mr Kemeh was told by his manager, Sgt Simmons, to ‘Shut up you dumb black bastard’.

The Court of Appeal found that:

• Ms Ausher was not the MoD’s agent. There was no evidence that the MoD consented either expressly or impliedly to Sodexho or its employees acting as its agent; therefore the MoD were not liable for her discriminatory comment.
• The MoD accepted liability for Sgt Simmons comment and Mr Kemeh was awarded £6,000 for injury to feelings. This was reduced from an earlier award of £12,000 because it was held to be too high an award for a one off comment.

Going forward, whilst employers should make sure that anyone working under their control complies with their equality policies they should do so in a way which seeks to avoid an agency relationship.

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Employer not liable for employee’s physical attack on customer

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In Mohamud v WM Morrison, the Court of Appeal found that an employer was not vicariously liable for its employee’s physical assault on a customer because there was not a sufficiently close connection between the employee’s actions and his employment.

Mr Mohamud, a Somali, visited Morrison’s supermarket where he was both verbally abused and physically assaulted by K, a Morrison’s employee. Following this, Mr Mohamud brought a claim against Morrisons. The Court of Appeal found Morrisons not liable because there was not a sufficiently close connection between the wrongdoing and K’s employment. The fact that K’s employment provided the opportunity and setting for the incident was not sufficient enough to prove liability on the part of Morrisons.

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Belief in the Labour Party equivalent to religious belief

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In Olivier v Department for Work and Pensions, the Tribunal found a strong commitment to a political party amounts to as much of a protected belief for the purposes of bringing a discrimination claim as a religious belief.

Mr Olivier worked for the DWP and was subject to its standards of behaviour, which set out the parameters to which civil servants can engage in political activity. He was dismissed for gross misconduct when following his election as a Labour councillor, he had a letter published in a local newspaper criticising the government’s tax and benefit policies. He subsequently brought a philosophical belief discrimination claim.

Before the case could proceed, Mr Olivier had to prove that he held philosophical beliefs of sufficient gravity to entitle him to the protection of the Equality Act. To do so, he had to show that his affiliation with the Labour Party was not mere political activity but a genuine belief in a political party, which amounted to democratic socialism. The tribunal accepted Mr Olivier’s arguments on the basis that: (i) his belief was genuinely held and not simply an opinion; and (ii) it influenced how he conducted his life in that he lived for the Labour Party and had supported its aims, values and causes for over 30 years.

In the run up to the 2015 general election next year, employers should note that whilst politically active workers cannot bring a discrimination claim on the basis of mere party support, they potentially can if their political views amount to strong genuine beliefs in a doctrine.

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