June’s Employment Law Digest – Case Law update

Disability discrimination and COVID-19

In Miles v Driver and Vehicle Standards Agency:

• The claimant was employed as a driving examiner at the Driver and Vehicle Standards Agency (DVSA).
• In November 2018, he was diagnosed with chronic kidney disease.
• In March 2020, all but critical driving tests ceased due to the COVID pandemic.
• In July 2020, tests started again. The DVSA required driving instructors to return to work, including those, like the claimant, considered to be clinically vulnerable, but not those who were clinically extremely vulnerable.
• The DVSA took advice and implemented several adjustments to its usual practices.
• The claimant refused to return to work, and his pay was stopped. He resigned on 10 August 2020 and brought claims of health and safety detriment and dismissal, unfair constructive dismissal and disability discrimination.

The Employment Tribunal (ET) dismissed all of his claims:

• The claimant’s opinion that there was a serious and imminent danger to himself if he returned to work was not a reasonable one. The ET found that the claimant had formed a fixed view, by 10 July 2020, that nothing less than social distancing of 2 metres would be safe for him. He regarded any other measure as insufficient. His assessment of the risk levels lost objectivity. The ET found that the various mitigating measures which had been put in place would have provided reasonable protection and, had the claimant informed himself properly rather than reached a premature conclusion, he would have reasonably formed that view.
• The discrimination claim failed as the ET found that the claimant was not disabled. The ET accepted that the claimant had a physical impairment but not that this had a substantial adverse effect on his ability to carry out normal day to day activities. It found that not going to work would be a substantial adverse effect but it was the claimant’s unreasonable belief which caused this decision, not the impairment itself.
• The ET found the claimant had not been constructively dismissed.

The Employment Appeal Tribunal (EAT) upheld the claimant’s appeal in part:

• The EAT dismissed the appeal in relation to the health and safety dismissal and detriment claims. The decision of the ET that the claimant did not hold a reasonable belief in a serious and imminent danger to himself was one that was open to it.
• The ET’s reasoning did not support its finding that the claimant was not disabled. The ET did not specify what the claimant’s belief was or why it was unreasonable. There was a “fundamental inconsistency” between the finding of the claimant having an “unreasonable belief” and the separate finding the ET had made that the claimant reasonably believed there were circumstances connected with his work which were harmful or potentially harmful to health or safety.
• The case was remitted back to the ET to reconsider the disability discrimination claim.
• As there was a possibility that on remission back to the ET, the disability discrimination claim could succeed and this could potentially result in the conclusion that the claimant was constructively dismissed, the decision that the claimant had not been constructively dismissed was set aside, also to be reconsidered by the ET.

Race discrimination and the importance of clear and credible witness evidence

In Jagbir Sidhu v Our Place Schools Limited:

• The claimant, a Sikh, worked as a supply teacher teaching science during the week and as a weekend support worker at the respondent.
• He brought claims of discrimination because of race and/or religion or belief, making a number of allegations including that:
  • a training manager had, during a conversation with the claimant, “made reference to Sikhs and used hand gestures to depict the sawing of Sikhs” which he alleged he had found “highly offensive, derogatory and humiliating” as historically, Sikhs had been persecuted as individuals had been executed by being sawn in half;
  • a colleague had made racist remarks by using the term “coloured people” in a discussion with the claimant about the numbers of people of colour in Herefordshire.

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The Employment Tribunal (ET) dismissed the claims. Key to the ET’s conclusions were its findings that:

• the claimant was not a credible witness who was “from time to time reluctant to answer questions, inconsistent, vague and inclined to make assertions of fabrication and wide-ranging conspiratorial conduct which require but were completely unsupported by any cogent evidence”. In contrast, the ET found that the respondent’s witnesses had given clear and credible evidence.
• The claimant “was not at the time nor was he subsequently ‘highly’ offended as he had alleged” and having regard to the circumstances of the case, “it was not reasonable for the conduct to have that effect”.
• The claimant had not indicated any unease or made any complaint at the time of the conversations and did not do so until his grievance four and a half months later.
• There was no evidence before the ET (other than the claimant’s assertion that this was the case) that Sikhs find sawing gestures generally or a specific sawing gesture (whether or not accompanied by discussion about the past history of execution of Sikhs by Muslims using saws) offensive or highly offensive.
• The claimant did not prove that the hand gesture was made and even if it did happen, although it could provoke strong negative feelings of revulsion or distress in the listener of that same religion or race and is therefore capable of amounting to unwanted conduct, such conduct did not, in this case have the purpose or effect of creating an intimidating hostile, degrading humiliating or offensive environment for the claimant.
• The claimant’s colleague had admitted using the term “coloured people” but the ET accepted her evidence that she had been wholly unaware at the time that the phrase had any derogatory connotations. There was no evidence to conclude that an offensive environment had been created or that it would have been reasonable for the comment to have had that effect. This was the first time he had worked with the teaching assistant and it was made in the context of an amicable discussion.

The Employment Appeal Tribunal dismissed the claimant’s appeal and held that:

• The ET had applied the law correctly.
• Notably, the claimant had not suggested, on appeal, that the ET had been perverse in finding there was a lack of evidence that he had been offended by the above incidents he complained about.

Subconscious discrimination

In Kohli v Department for International Trade:

• The claimant brought a claim for direct discrimination on the grounds of race and disability connected to her appraisal grading and the fact that she was not offered a number of different internal roles.
• Her claim was dismissed by the Employment Tribunal (ET) which found that whilst the claimant felt genuinely aggrieved at a number of issues, there were non-discriminatory reasons for the actions of the employer. The ET found she had an unrealistic view of her achievements and that the slightly higher appraisal grade given to a colleague was not tainted by discrimination.
• The claimant appealed and argued that the ET had failed to consider subconscious discrimination.

The Employment Appeal Tribunal dismissed the appeal and confirmed the following:

• Although an ET may consider the possibility of subconscious discrimination, it is not required to do so in every single decision.
• There was no suggestion that the respondent had acted on the basis of stereotyping or assumptions based on the claimant’s Indian origins.
• The ET considered what the true reasons for the matters complained of were. Although it did not refer to subconscious discrimination in its reasons or consider this as a separate matter, its findings effectively precluded findings that the claimant’s Indian origins subconsciously influenced the decisions of the respondent. The ET also permissibly found that there were no facts from which it could draw an inference that this had happened.
• In all matters of direct discrimination, a tribunal must consider what the alleged discriminator’s true reasons for the acts complained of were – this implicitly includes a consideration of their subconscious thoughts. Once this has been determined, there will be little or no room for a finding of subconscious discrimination unless those reasons were themselves discriminatory, for example because they reflect stereotypical assumptions.

If you have any questions about the cases discussed, or if you would like to get in touch regarding another matter please get in touch with Katie Adams, or another of our expert Employment lawyers.