22 December 2023|
Sex / Gender
Discrimination round-up 2023
As 2023 draws to a close, we look at 6 key cases to have shaped the discrimination law landscape this year.
1. Harassment: Greasley-Adams v Royal Mail Group  EAT 86
The EAT considered whether a person’s dignity could be violated without them having knowledge of the conduct that caused it.
Mr Greasley-Adams worked as a driver for Royal Mail and was disabled for the purposes of the Equality Act 2010 due to his Asperger’s syndrome. Two of Mr Greasley-Adams’ colleagues submitted grievances against him for bullying and harassment, amongst other things. In response, Mr Greasley-Adams submitted his own grievances against the two colleagues. During the course of the investigation into Mr Greasley-Adams, Mr Greasley-Adams was made aware of derogatory comments that had been made about him by the aggrieved colleagues, prior to the investigation.
In the ET, Mr Greasley-Adams sought to rely on the comments made by his colleagues as “unwanted conduct” amounting to harassment under s.26 Equality Act 2010 (“EA 2010”). The ET found that the comments did not violate Mr Greasley-Adams’ dignity before the time at which he was aware of them. When he did become aware of them, during the investigation against him, it was not reasonable for the conduct to have violated his dignity at that stage.
The EAT dismissed the appeal. Mr Greasley-Adams was unaware of the conduct and could therefore have no perception of it, which caused his claim to fail the test under s.26 EA 2010.
Key takeaway: Only unwanted conduct of which a claimant is aware may be found to be harassment.
2. Decision Maker’s motivation: Alcedo Orange Limited v Ferridge-Gunn  EAT 78
The EAT held that tribunals must consider who the decision maker(s) is and their motivation(s) before concluding that there has been discriminatory conduct.
Whilst Ms Ferridge-Gunn was absent due to morning sickness, her line manager (“LM”) told the Managing Director of Alcedo Orange (“the MD”) that following a performance review meeting, Ms Ferridge-Gunn had misled him on her performance progress. This statement by LM to the MD was not true, and LM also made unsympathetic and ignorant comments about Ms Ferridge-Gunn’s pregnancy to her colleagues. Ms Ferridge-Gunn was subsequently dismissed by the MD for performance related issues, including that she had misled the MD as to her performance progress, and because LM said the role was unsustainable.
The EAT allowed Alcedo Orange’s appeal. The EAT found that applying Reynolds v CLFIS (UK) Ltd  ICR 1010, the person who carried out the allegedly discriminatory act (in this case, the MD) must have been motivated by the protected characteristic in question. The act could not be discriminatory if it was done on the basis of someone else’s discriminatory motivation, and without holding that motivation themselves. As the ET had not analysed who had decided to dismiss Ms Ferridge-Gunn, and therefore their motivations for doing so, the ET’s conclusions could not stand. The case was remitted back to the same tribunal.
Key takeaway: The individual employee who did the act complained of must themselves have been motivated by the protected characteristic.
3. “Something” arising from disability: Pilkington UK Ltd v Jones  EAT 90
In Pilkington, Mr Jones was signed off from work due to a debilitating and progressive shoulder condition, which the ET found to be a disability for the purposes of s.6 of the EA 2010. Whilst on sick leave, Mr Jones’ employer, Pilkington UK Ltd (“PUK”) received a “tip off” that Mr Jones had been wearing work boots and was suspected to be undertaking manual labour at a friends’ farm. PUK therefore believed that Mr Jones had not been honest about the severity of his condition, and engaged a private surveillance company to obtain footage of Mr Jones. The surveillance they gathered showed Mr Jones getting into a farm van with a small bag of potatoes, and him holding a hose pipe tap open. Based on the footage, PUK dismissed Mr Jones for gross misconduct.
Mr Jones brought claims under s.15 EA 2010, alleging that he had been treated unfavourably because of something arising in consequence of his disability. The ET agreed with Mr Jones, finding that the “something arising” under s.15 was the belief by PUK that he was engaged in manual labour whilst off sick, and the consequential dismissal.
The EAT dismissed PUK’s appeal that an erroneous belief was not capable of being “something arising” for the purposes of s.15. The EAT affirmed that there are two aspects of causation under s.15: (1) something arising from the disability, and (2) consequential unfavourable treatment. The first requiring an objective analysis, and the second requiring a subjective analysis. The EAT found that although a belief is subjectively held, it can be objectively recognised from surrounding facts for the purposes of the first stage of the causation test.
Key takeaway: An accurate or erroneous belief, drawn from a knowledge of the existence of a C’s disability would be a “something” arising from the disability.
4. Unfair treatment: McAllister v HMRC  EAT 87
Mr McAllister suffered from anxiety and depression and as a result had a high number of absences during his employment. HMRC dismissed Mr McAllister under their capability procedure, stating that they had made all possible reasonable adjustments, and his persistent absences were impacting on productivity and staff morale. Mr McAllister was enrolled in the Civil Service Compensation Scheme (CSCS) which provided for a discretionary payment on dismissal, starting at a set maximum and gradually reduced according to conduct whilst in employment. Mr McAllister was awarded 50% of the full CSCS payment due to his failure to answer calls, delay in returning relevant forms, consistent late arrival at work and disruptive behaviour during his employment. Mr McAllister appealed this decision, and the compensation was increased to 80% of the full CSCS payment.
The ET found that the amount of the CSCS payment awarded to Mr McAllister arose as a consequence of his disability. Further, the ET found that Mr McAllister’s less than adequate performance arose in part from his disability and so the 80% payment was justified, but a 50% payment was not.
Mr McAllister appealed, and HMRC cross-appealed. The EAT held that the ET had mischaracterised the unfavourable treatment as the reduction in payment, when the correct question was whether the payment itself could constitute unfavourable treatment. The CSCS payment was a benefit that arose in consequence of Mr McAllister’s disability and was not therefore unfair treatment.
Key takeaway: Under s.15 EA 2010, it is only necessary to demonstrate that the unfavourable treatment is because of something arising in consequence of the disability. However, the treatment must be genuinely unfavourable.
5. Reasonable adjustments: Hilaire v Luton Borough Council  EAT 166
In this case, the EAT looked at whether requiring a disabled employee to attend a redundancy selection interview could amount to a substantial disadvantage, giving rise to the employer’s duty to make reasonable adjustments.
Mr Hilaire suffered from arthritis and depression. As part of a collective redundancy process, he was required (along with other employees of the Council) to attend an interview to apply for a new role. Mr Hilaire was signed off sick during this period and so the Council extended the consultation period to allow him to attend an interview. However, he did not attend. In the ET, Mr Hilaire argued that as a reasonable adjustment, the Council should have placed him in a new role without the requirement of an interview.
The EAT found that while a disability could place a claimant at a substantial disadvantage in the case they are required to interview as part of a consultation process, the reason that Mr Hilaire did not attend the interview was not connected to his disability. Additionally, and in any event, the EAT found that while the extension of the consultation process did not amount to a reasonable adjustment in this case, there were no reasonable adjustments that could have been made. Slotting Mr Hilaire into a role without interview is not a reasonable adjustment, as it would be a vehicle for giving an advantage over and above removing the particular disadvantage.
Key takeaway: A claimant must be able to identify the causative link between the PCP and a disadvantage connected to the disability.
6.Religion/ belief discrimination and gender critical beliefs: Higgs v Farmor’s School and anor  EAT 89
We previously wrote about this case last year, but the Higgs case came back into the news this year when the EAT remitted the case back to the original ET.
The EAT found that the ET had failed to engage with the question of whether the School’s action was because of, or related to, Mrs Higgs’ manifestation of her beliefs. In doing so, the ET should have considered whether there was a sufficiently close or direct nexus between Mrs Higgs’ protected beliefs and her Facebook posts. If the answer to this question was positive, then the ET should have looked at whether the School’s treatment of Mrs Higgs was because of, or related, to the manifestation of her belief or because she had manifested her belief in a justifiably objectionable way. This requires a proportionality test (Bank Mellatt v HM Treasury (No 2)  AC 700), balancing Mrs Higgs’ freedoms to hold her religious views against the legitimate interests of the school and others. Were the School’s actions prescribed by law or necessary for the protection of the rights and freedoms of others? As the ET had not considered the necessity of the actions taken by the School, they had failed to apply the correct proportionality test.
Key takeaway: There is no “one-size fits all approach” when assessing competing protected characteristics in the workplace and decisions should be taken on a case-by-case basis.
Farore Law is a leading boutique law firm that has a wealth of experience in advising on all types of discrimination claims. We are well placed to provide appropriate advice regarding making an allegation through your company’s internal grievance process, seeking a settlement agreement and commencing litigation. Our lawyers frequently advise senior executives and other individuals who have been subjected to discrimination and recognise the importance of anonymity and reputation management.
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