June’s Employment Law Digest – Case law update

Disability Discrimination – the liability of individually named respondents  

In Baldwin v Cleves School & Others:

• The Claimant worked as a newly qualified teacher before she resigned and brought claims for disability discrimination.
• In her claim, she named two employees as individual respondents to the claim alongside her employer: a colleague and the headteacher of the school.
• The Employment Tribunal (ET) found that the employer, the first respondent, was liable for two acts of disability discrimination done by the second and third individual respondents.
• Even though the ET had found the acts of the second and third individual respondents to be discriminatory, it dismissed the claims against them, saying that their acts were misguided attempts to address a complex situation and that their main failing was not obtaining HR advice in good time.
• The Claimant appealed.

The Employment Appeal Tribunal upheld the appeal and found that:

• Properly construed there is no discretion on an ET to find that an employee has not contravened the legislation, if the conditions for individual liability under it are met.
• Further, there is no discretion to find that an individual employee has not contravened the legislation where the respondent employer has been found liable.
• The EAT substituted a finding that there had been a contravention of the Equality Act by the individual respondents in respect of their acts for which the School was liable.

What are the lessons for employers?

Training and Awareness:

• Ensure all employees, especially those in managerial positions, are fully aware of their responsibilities under the Equality Act.
• Regular training on discrimination laws and appropriate workplace conduct is crucial.

HR Involvement:

• Encourage prompt and proactive involvement of HR in complex or potentially discriminatory situations.
• Establish clear procedures for seeking HR advice to prevent misguided actions.

Clear Policies and Procedures:

• Develop and implement robust policies for handling discrimination and other equality-related issues.
• Ensure that these policies are communicated effectively to all employees.

By understanding and implementing these take-home points, employers can better navigate their responsibilities under the Equality Act and minimize the risk of liability for both the organization and individual employees.

Discrimination arising from disability

In Bodis v Lindfield Christian Care Home Limited:

The respondent undertook an investigation after a number of unusual incidents at its care home. This included paper towels being stuck down the staff toilets, CQC reports found soaked in water, a poster for staff found to have been vandalised, photographs of the registered manager and deputy manager defaced by the addition of facial hair, oil from a reed diffuser found spilt over the registered manager’s desk, keyboard, laptop and radiator and the boiler turned off on purpose.

The investigation undertaken by Mr Nurse included reviewing the management log and the daily staff sign-in and sign-out sheets. He concluded it was likely that a staff member was involved because of restricted access to some of the locations, the defacing of staff photographs and the apparent criticism of management.

Mr Nurse compared the dates of the incidents and the staff log to identify which members of staff were present. The claimant was the only person on duty when all of the incidents occurred.

He looked at samples of handwriting of staff and concluded that the claimant’s was similar to the handwriting that had been found.

Mr Nurse decided that there was a case for the claimant to answer.

The claimant was disabled with anxiety and depression. Mr Nurse did not know this. The claimant did not ask for details of what was to be discussed or to be accompanied before, or at, the investigatory interview. The claimant did not say during the interview that she was not able to give a full account of herself because of her medical condition.

The Employment Tribunal (ET) recorded that “Mr Nurse accepted that had he been told that the claimant was suffering from a mental health challenge he would not have taken the fact that her answers were sometimes brief and not to the point, as part of his reasoning as to why it was appropriate to proceed to a disciplinary proceedings”.

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Take Me There

Mr Nurse concluded that the claimant was the likely perpetrator of several, if not all, of the incidents. She was suspended to face allegations of gross misconduct at a disciplinary hearing.

At the start of the disciplinary hearing, the claimant was asked if she was fit to continue and said that she was. The claimant had twice been advised in writing that the respondent would consider an adjournment if she provided a letter from a medical practitioner stating that she was unfit to attend and indicating when she would be fit.

The claimant did not offer any alternative explanation for the strange events, other than denying that she was the culprit.

Having analysed the evidence the panel found on the balance of probabilities that the claimant was guilty of disrupting the running of the care home and harassing the registered manager and deputy manager. The panel considered that the claimant’s behaviour was inappropriate, the manager and deputy manager were very upset by the incidents and the employment relationship had totally broken down. The claimant was summarily dismissed. She did not appeal.

The ET noted that no further similar incidents occurred following the claimant’s dismissal.

The ET accepted that the manner in which the claimant answered questions in the investigation meeting arose in consequence of her disability. It also found that this had influenced the decision to refer the matter to a disciplinary hearing. However, as it had only been a “trivial” influence and not the “effective cause” of the decision to dismiss, the ET held that the decision did not “arise from” the conduct.

The Claimant appealed against the ET’s dismissal of her unfair dismissal and discrimination arising from disability claims.

The EAT disagreed with the ET:

• There is no concept of “causal triviality”. The key question is whether the unfavourable treatment is because of the “something arising” in consequence of disability.
• To establish liability for discrimination arising from a disability, the “something arising” can be a minor component of the reason for the treatment, provided it is “significant” so as to be an “effective cause”.
• The ET referred to the claimant’s demeanour not being “the” effective cause, whereas it need only have been “an” effective cause. The fact that it was a minor one did not mean that the claim was not made out.
• However, the claimant’s appeal still failed because the ET had found as an alternative that the decision to take the matter to disciplinary was justified in any event, as a proportionate means of achieving a legitimate aim, given the cumulatively serious nature of the allegations, the impact on the registered manager who had been so affected she had considered resigning and the fact that other staff were so affected by the atmosphere caused they were walking “on egg shells”. The claimant had not appealed against the ET’s justification finding and therefore the EAT found there was no effective challenge to the ET’s finding.

Reasonable Adjustments

In Dr V Powell v University of Portsmouth:

Due to an undiagnosed cardiac impairment, the claimant began to suffer unpredictable blackouts, which impacted upon his ability to carry out the classroom and lecture style teaching that made up the majority of his role as a principal lecturer.

Having rejected the claimant’s proposal that a support worker be appointed to accompany him to lectures or work-place visits and having also declined to allow him to return to more limited research-based teaching duties, the university took the decision that the claimant should not be permitted to return to work whilst he could not undertake face-to-face classroom teaching.

The claimant pursued claims of disability discrimination and constructive dismissal.

The Employment Tribunal (ET) dismissed the claims, agreeing with the respondent that the claimant’s main role was to teach. No reasonable adjustments could enable the claimant to continue to remain at work without teaching, for such an extended period.

The claimant appealed and his appeal was dismissed at the Employment Appeal Tribunal:

• The ET had permissibly had regard to the difficulties the university had experienced in covering the claimant’s teaching when he had previously been on sick leave and had accepted that the assured provision of high-quality teaching was a legitimate aim going into the academic year.
• Given the claimant’s inability to complete the reduced duties agreed as part of a phased return to work during the summer vacation, taken together with the way in which he had described the debilitating blackouts he continued to suffer (the cause of which remained undiagnosed at that time) and the first respondent’s reasonable concerns as to the risks this condition posed to the university and its students and to the claimant himself, the ET had been entitled to find that the steps suggested by the claimant did not amount to reasonable adjustments.

Employers should consider reasonable adjustments for disabled employees but ensure they align with core job responsibilities and maintain high-quality standards. Proposed adjustments must be practical and safe for both the employee and others. It’s crucial to evaluate the feasibility of adjustments, consult medical professionals, and conduct risk assessments. Clear communication with the employee and thorough documentation of all decisions and their rationale are essential to ensure transparency, co-operation and legal compliance.

If you have any questions with regard to these cases or any other related employment law matters, please do get in touch with Katie Adams or another of our expert Employment Law Solicitors.