April’s Employment Law Digest – Case law update

Disability discrimination

In Philip McQueen v The General Optical Council:

• The claimant had a number of disabilities within the meaning of the Equality Act 2010, namely dyslexia, symptoms of Asperger’s Syndrome, neurodiversity and partial hearing loss.
• He attended occupational health appointments at various points during his employment and adjustments were made to his method of working. It was common ground that his conditions could cause some difficulties with his interactions in the workplace.
• The claimant became involved in difficult interactions with co-workers and disciplinary action was taken against him.
• The claimant brought 4 tribunal claims with wide ranging allegations of discrimination. When the first 2 claims were heard by the tribunal there was an agreed list of 130 issues.
• All except one of the claims failed; a single claim for victimisation succeeded.
• The tribunal found that the effects of the claimant’s disabilities were limited to a requirement for written instructions to back up verbal communications; and a need for some physical adjustments to the workplace.
• It rejected the claimant’s case that the effects of the disability went further and included a need to stand up at work and speak and a need not to be approached in a confrontational manner. It found that on the occasions the claimant went into “meltdown” or became “loud and angry”, the disabilities played no part in his conduct; it was “because he had a short temper, and he resented being told what to do”.
• The claimant argued that the tribunal should have considered a dual or multi-factor causation test, whether any disabilities had been a factor in his conduct, meaning that the disciplinary action taken was due to something arising in consequence of his disabilities.

The Employment Appeal Tribunal rejected the appeal and held that:

• There had been no error of law or principle in the tribunal’s findings.
• Once the tribunal had determined that the disabilities did not have any effect on the claimant’s conduct on the occasions in question, the further question of whether any unfavourable treatment was “because of” that conduct did not arise.

Apparent bias

In Rolec (Electrical and Mechanical Services) Ltd v Mrs J Georgiou:

• The claimant succeeded with her claim of constructive dismissal before an employment tribunal.
• The respondent believed that the final hearing had not been conducted fairly and impartially by the judge.
• The respondent appealed on various grounds including that the employment tribunal (ET) had demonstrated pre-determination and / or the appearance of bias.

The Employment Appeal Tribunal (EAT) allowed the appeal.

The EAT noted that the parties before the ET were entitled to a fair hearing before an independent and impartial tribunal. That must mean a tribunal that had not pre-determined the decision it was required to reach and where the facts were not such as would cause a fair minded and informed observer to consider there was a real danger of bias on its part.

The EAT did not accept the majority of the respondent’s criticisms of the ET judge’s interventions but held that “even allowing for robust case management, and for the need for the judge to seek to ensure the unrepresented claimant was not put to a disadvantage, there were times when I have had to conclude that the informed, reasonable observer would indeed consider there was a real risk of bias.”

The EAT found there were at least 3 occasions during the hearing when the judge gave the appearance of having taken a side:

• Telling the respondent that an allegation that the claimant had failed to mitigate her loss was hopeless, before any representations had been made to the tribunal on it.
• Telling one of the respondent’s witnesses that they may be in contempt of court for failing to disclose the original notes of a meeting (when the evidence of the witness was that the notes had been incorporated into the decision letter) which EAT said went beyond legitimate enquiry.
• Making an “uncalled for and pejorative remark” about the experience of the respondent’s representative.

The EAT noted that the criticisms of the judge’s conduct was not limited to a particular part of the case: “The respondent may be wrong to see each of the judge’s interventions as evidencing apparent bias, but that, of course, is a problem that can arise when there are other examples of behaviour that do cross the line and indicate a closed mind: every intervention is then viewed with suspicion, even if only in hindsight.

The decision of the employment tribunal was set aside and sent back for a fresh hearing before a new employment tribunal.

Mitigation of loss

In Edward v Tavistock and Portman NHS Foundation Trust:

• The claimant was an NHS band 5 data officer.
• In a restructure, the role was downgraded to band 4, and the claimant was dismissed on the basis that there were no available band 4 vacancies.
• The tribunal found that in failing to redeploy the claimant to a band 4 role, the respondent victimised him for having made allegations of discrimination.
• The claimant was out of work for over 2.5 years. By the time of the remedy hearing the claimant had been in a new job, paying a higher salary, for 3 months. It was a fixed term contract running for 5 more months. During his period of unemployment the claimant had not applied for band 4 roles in the NHS.
• The tribunal found that:
  • By a certain time during his period of unemployment he should have started to apply for band 4 roles. It reduced his loss of earnings for the remainder of the period of past loss by 50% to reflect the prospect that he would have obtained work if he had applied for band 4 roles
  • The claimant would be able to find band 4 roles in future, and awarded 6 weeks loss of earnings, to reflect the prospect that he may not find a new role immediately after the end of his fixed term contract.
• The claimant appealed and the respondent also sought to cross-appeal.

The Employment Appeal Tribunal held that:

• The tribunal gave itself no directions as to the applicable legal principles, and it was not clear from its reasons that it had applied the correct test i.e. whether:
  • it had placed the burden of proof on the respondent to prove failure to mitigate; and
  • it had asked itself whether the claimant had acted unreasonably in failing to take steps to mitigate.
• The tribunal had made an error in applying a 50% discount to loss of earnings over the relevant period. It should have made a finding as to when the claimant would, acting reasonably, have found new employment and at what rate. Whilst there may be cases where consideration may need to be given to a “percentage discount” approach in the light of the “loss of a chance” principles, this was not such a case.
• The tribunal’s assessment of future loss of earnings was adequately reasoned and was not perverse. The appeal on this ground was dismissed.

The case was sent back to the employment tribunal for rehearing on the question of mitigation and past loss of earnings. The EAT provided the following guidance on what must be considered on the question of a claimant mitigating their loss:

• The burden of proof is on the respondent at all times.
• The tribunal should consider:
  • What steps was it unreasonable for the claimant not to have taken?
  • When would those steps have produced an alternative income?
  • What amount of alternative income would have been earned?
• The tribunal should bear in mind that the nature of the exercise is not making an assessment based on facts and it should not strive for a “false appearance of precision”. When applying a reduction, it must make a finding based on a broad evaluation of all the available evidence.

If you have any questions about any of the cases discussed in this month’s case law round-up please do get in touch with Katie Adams, or another of our expert Employment Law solicitors.