Discrimination

In Dobson v North Cumbria Integrated Care NHS Foundation Trust, the EAT has held that an employment tribunal erred in failing to take judicial notice of the fact that women are less likely than men to be able to accommodate flexible working patterns because of childcare responsibilities. The fact that women bear the greater burden of childcare than men and that this can limit their ability to work certain hours – which the EAT referred to as the ‘childcare disparity’ – is a matter in respect of which judicial notice has been taken without further inquiry on several occasions, and should have been taken in the present case.

D was employed as a community nurse working fixed days. Following a review in 2016, the Trust sought to introduce more flexible working. In particular, it introduced a requirement that community nurses work flexibly, including working at weekends. D was unable to comply because of her caring responsibilities for her three children, two of whom are disabled. She was dismissed. She claimed unfair dismissal and indirect sex discrimination, among other things. Under S.19 of the Equality Act 2010, indirect sex discrimination arises in relation to a female employee where (a) the employer applies to her a provision, criterion or practice (PCP) that it applies, or would apply, to men; (b) the PCP puts, or would put, women at a particular disadvantage when compared with men; (c) the PCP puts, or would put, the female employee at that disadvantage; and (d) the employer cannot show the PCP to be a proportionate means of achieving a legitimate aim.

An employment tribunal dismissed all of D’s claims. The tribunal accepted that the Trust applied a PCP, namely requiring that its community nurses work flexibly, including at weekends, and that that PCP applied to men and women in D’s team. However, it went on to find that it had been shown no evidence that the PCP put women at a particular disadvantage compared to men. It noted that, on the contrary, all of D’s female colleagues were able to meet the requirement, as was the only man in the team. Thus, although the tribunal accepted that D personally was placed at a disadvantage, it concluded that the claim had to fail for lack of group disadvantage. The tribunal went on to note that, if it had had to consider objective justification, it would have found that the Trust was pursuing the legitimate aim of achieving flexible working by all community nurses in order to provide a safe and efficient service, and that it was proportionate to do so by applying the PCP to all members of the nursing team. D appealed to the EAT.

The EAT allowed the appeal. It accepted D’s argument that the tribunal had erred in confining the pool for comparison, for the purpose of testing group disadvantage, to the nurses in D’s team. The tribunal had found that the Trust applied the PCP to all community nurses and so, logically, the pool for comparison had to include all of the community nurses who were required to work flexibly. A pool comprising only members of D’s team would not be appropriate because the PCP was not so confined.

With regard to the lack of evidence of group disadvantage, the EAT accepted D’s argument that the tribunal had erred in failing to take judicial notice of the fact that more women than men tend to have childcare responsibilities and so are more likely to be unable to comply with flexible working requirements. D identified a number of examples in the case law where judicial notice had been taken of the fact that women are more likely to be child carers than men. The EAT concluded that two points emerged from these authorities: first, the fact that women bear the greater burden of childcare responsibilities than men and that this can limit their ability to work certain hours is a matter in respect of which judicial notice has been taken without further inquiry on several occasions (‘the childcare disparity’); and secondly, while the childcare disparity is not a matter directed by statute to be taken into account, it is one that has been noticed by courts at all levels for many years. The EAT cautioned that the matter is not set in stone: many societal norms and expectations change over time, and what may have been apt for judicial notice some years ago may not be so now. However, in its view, this did not apply to the childcare disparity. While things might have progressed somewhat, in that men do now bear a greater proportion of child caring responsibilities than they did decades ago, the position is still far from equal. The EAT therefore accepted that the assumptions made and relied upon in the authorities cited were still very much supported by the evidence presented to it of current disparities between men and women in relation to the burden of childcare.

As for the present case, the EAT held that, although the tribunal was not specifically asked to take judicial notice of the childcare disparity, it should have done so. The childcare disparity is so well known in the context of indirect discrimination claims and so often the subject of judicial notice in other cases that it was incumbent on the tribunal, in the circumstances, to take notice of it here. The tribunal therefore erred in not taking account of it and in treating D’s case as unsupported by evidence. The EAT went on to note that taking judicial notice of the childcare disparity does not necessarily mean that group disadvantage is made out. Whether or not it is will depend on the interrelationship between the general position that is the result of the childcare disparity and the particular PCP in question. However, on the present facts, where the PCP was to work flexibly, including at weekends, and the nurses did not have any flexibility to choose working hours or days within certain parameters, this was one of those cases where the relationship between the childcare disparity and the PCP was likely to result in group disadvantage being made out.

The EAT went on to uphold D’s appeal against the tribunal’s conclusion on objective justification and against the rejection of her unfair dismissal claim. It accordingly remitted the claims to be reheard.

Link to transcript: https://www.bailii.org/uk/cases/UKEAT/2021/0220_19_2206.html

 

A woman who lost her job after expressing views that sex cannot be changed and transgender women are “not women” has won an appeal against an employment tribunal.

In Forstater v CGD Europe and ors, the EAT has held that ‘gender-critical’ beliefs, including a belief that sex is immutable and should not be conflated with gender identity, are protected under the Equality Act 2010. The employment tribunal had erred in finding that such beliefs were ‘not worthy of respect in a democratic society’. A philosophical belief is only excluded from protection if its expression would be akin to Nazism or totalitarianism and thereby liable to be excluded from the protection of rights under the European Convention of Human Rights. The claimant’s gender-critical beliefs, which were widely shared and did not seek to destroy the rights of trans persons, clearly did not fall into that category

Link to case.

In All Answers Ltd v W and anor, the Court of Appeal held that an employment tribunal erred in failing to consider whether the adverse effect of a disability discrimination claimant’s mental impairment was likely to last for at least 12 months as at the date of the alleged discriminatory acts. The Tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect was likely to last for 12 months.

Link to transcript: https://www.bailii.org/ew/cases/EWCA/Civ/2021/606.html

 

Is Constructive Dismissal Hard to Prove?

Have you ever had your contract seriously breached by your employer? Or felt forced to resign because of your employer’s hand in creating a hostile working environment and would like to put in a claim? This could be potentially considered constructive dismissal.

Constructive dismissal can be hard to prove, and few claims win at employment tribunals, but that doesn’t mean a claimant can’t be successful. With sufficient evidence, you may even be able to resolve the issue without having to quit your job.

Still unsure of how to go about the constructive dismissal process? Fear not, we’ve covered all the necessary steps that you’ll need to take to develop a strong case for your claim.

What Is Constructive Dismissal?

Constructive dismissal, to put it plainly, is when an employer’s conduct and actions make an employee’s working environment intolerable and as a result, compels them to resign. Though the employee has chosen to leave, as their employer has mistreated them, there has been a breach of contract, and so the employee is entitled to put in a claim.

In legal terms, the employer’s wrongful behaviour, which accounts for the “constructive” part has led to the employee’s resignation – the “dismissal”, which the law interprets as unfair.

Are Constructive Dismissal and Unfair Dismissal the Same?

The answer to this is no, although the two are similar.

Constructive dismissal in practical terms refers to when an employee feels forced to leave their job as a result of unjust and wrongful behaviour carried out by their employer.

Unfair dismissal describes the act of being fired unlawfully. This is usually the case when an employer has failed to follow the appropriate dismissal procedure and gave insufficient notice to the employee when firing them.

You can read further on both Unfair Dismissal & Constructive Dismissal over on the Government website.

When Can You Claim Constructive Dismissal?

You can claim for constructive dismissal when there has been a severe breach in a contract of employment by your employer. This does not have to be limited to a single incident, as it may be that your employer has committed a series of unjust actions over some time which has amounted to a breach.

Employer Actions That Could Amount to Claiming?

  • Harassment, bullying or discrimination at work by themselves or other employees
  • A significant reduction of your salary, or threat to reduce your payments with no given reason
  • Forcing you to accept changes to your working conditions or hours of work, without an agreement, or contractual right
  • Demotion without excellent and relevant reason
  • Refusal to pay you
  • Forcing the employee to work in an unsafe working environment

Is Constructive Dismissal Hard to Prove?

Employment law is very complicated, and unless you can provide evidence that your employer has radically made your job intolerable, then constructive dismissal can be hard to prove.

Make sure you read through your contract thoroughly before making any claims to ensure there are no open clauses. For example, if your employer has forced you to work in a different location, with varying hours or at a reduced salary it would be wise to make sure your contract states they are inhibited from enforcing this; otherwise, a tribunal may deem your employer’s actions to be fair.

Is Constructive Dismissal Hard to Prove?

Also, in most constructive dismissal cases, you can only claim if you have worked for your employer for at least two years. If you’ve been wrongly treated but have less than two years continual work with your employer, then a constructive dismissal claim will only be accepted in certain situations.

Either you have been discriminated against, or the reason for your claim classifies as being automatically unfair and so no qualifying period of work is required.

What Constitutes as Being Automatically Unfair That Amounts to a Breach of Contract:

  • You were either pregnant, on maternity leave, or paternity leave
  • Acted against a health and safety issue in the workplace
  • Are a member of a trade union and participated in trade union activities, or were acting as an employee representative
  • Acted to enforce statutory employment rights
  • You have performed in accordance with whistleblowing law by reporting your employer for wrongdoing

How to Prove Constructive Dismissal

There are a few essential steps that an employee should consider before looking to prove constructive dismissal.

Before resigning, you are advised to try to manage and sort the dispute between yourself and your employer first by lodging a formal grievance. This should be done in writing as it not only makes the employer aware of the issue at hand but allows your statement to go down on file. Also, keep a copy for yourself as you may need to refer to it at a later stage.

Filing a formal complaint could help the situation in several ways. First, by allowing your employer to resolve the dispute before it reaches tribunal, or as a tactical measure to support your reason for leaving, as it proves you made genuine efforts to amend the issue.

How to Prove Constructive Dismissal

It is also wise to seek legal advice from an employment law solicitor before making a constructive dismissal claim. Although this is not a legal requirement, a specialist can advise you on the strong points of your case and the prospect of it being unbeaten, which will help you better prepare.

If after lodging a formal grievance nothing changes, check to see whether your working situation corresponds to any of the actions that constitute a breach of contract. If you find that it does, leave your job immediately. While this may sound daunting, if you stay in your career, your employer could use that against you in a tribunal by stating you accepted the treatment you were receiving.

Put together a letter, which must be of exact and careful wording stating the fundamental breaches of contract your employer committed and try to gather as much evidence as you can to support your claim.

How Long After Resigning Can I Claim Constructive Dismissal?

You have exactly three months, minus a day from the date you handed in your resignation to make a constructive dismissal claim.

Before resigning, again, it is strongly recommended that you seek legal advice as to whether you do or don’t work your notice period as this may affect the success of your case.

How Long After Resigning Can I Claim Constructive Dismissal?

In your resignation letter, make your reason for leaving crystal clear, a convoluted resignation may make it appear as if your reason for leaving wasn’t due to your employer’s behaviour. 

Do not use glowing vocabulary, or thank your employer as that doesn’t depict the character of someone who is feeling forced to leave, and that could be used against you.

Also, please be aware that even if your constructive dismissal claim is successful, the compensation you receive could be limited. Sometimes employees and employers negotiate settlement agreements before the employee resigns, but this comes with significant risk, and so you should seek legal guidance if you are considering this prospect.

Ultimately, the constructive dismissal process is a complicated one, and you should seek legal advice before making any rash decisions. In most cases, employees who have not sought legal counsel have not been successful, and it’s best to have a tactical advantage when going to tribunal.

Discrimination – Remedy

A Tribunal is not bound to award injury to feelings in the lower vento band just because it is a one off act of discrimination.

The EAT said “Moving on to the ET’s assessment of injury to feelings in this case, it is right to say that, in deciding whether the case should fall within the lower or middle Vento bands, an ET might think it relevant to have regard to whether the discrimination in question formed part of a continuing course of conduct (perhaps a campaign of harassment over a long period)or whether it was only a one-off act. That said, each such assessment must be fact and case specific. It is, after all, not hard to think of cases involving one-off acts of discrimination that might well justify an award falling within the middle or higher Vento brackets, or other cases involving a continuing course of conduct that are properly to be assessed as falling within the lower band. Simply describing discrimination as an isolated or one-off act may not provide the complete picture and I do not read the Vento guidance as placing a straightjacket on the ET such that it must only assess such cases as falling within the lower band. The question for the ET must always be, what was the particular effect on this individual complainant.”

Disability Discrimination – Disability related discrimination

It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim. Further, an employment tribunal should have considered whether an employer had gained actual or constructive knowledge of a claimant’s disability by the time it rejected her appeal against dismissal, rather than simply considering whether the employer had knowledge of her disability when it reached the initial decision to dismiss.

The Claimant was dismissed by the Respondent at the end of a six-month probationary period. It was accepted that she was disabled by depression. She claimed that her dismissal was an act of disability related discrimination under section 15 EqA 2010. The ET rejected the claim because: (a)They found that the Respondent did not know and could not reasonably have been expected to know that she was disabled at the time of the dismissal; (b)They said there was no evidence that her behaviour towards her colleagues (which was part of the reason for her dismissal) “arose in consequence of” her disability; (c)There were other reasons for her dismissal in addition which were sufficient; (d)The dismissal was justified under section 15(1)(b) EqA 2010. The EAT allowed the appeal because of errors in relation to each stage of the reasoning: (a)Although the Respondent did not know about the Claimant’s disability at the time of the dismissal, they may have acquired actual or constructive knowledge of it before the rejection of her appeal and the rejection of the appeal formed part of the unfavourable treatment of which she was complaining; (b)There was in fact some evidence that her depression caused the relevant behaviour which the ET ought to have considered; (c)It was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes as well was not an answer to the claim; (d)The ET failed to consider the section 15(1)(b) defence properly; in particular, they failed to address the question whether dismissal was a proportionate response.

 An employer was not liable for harassment under Ss.26 and 109 of the Equality Act 2010 when an employee posted a racially offensive image on Facebook and shared it with a colleague

Forbes -v-LHR Airport Ltd UKEAT/0174/18

A colleague of the Appellant, Ms S, posted an image of a golliwog on her private Facebook page with the caption, “Let’s see how far he can travel before Facebook takes him off”. The image was shared with Ms S’s list of Facebook friends, including another colleague, BW. BW showed the Facebook post to the Appellant. The Appellant complained of harassment by Ms S. Ms S apologised and received a final written warning. Thereafter, the Appellant was rostered to work alongside Ms S. When he raised a concern, he was moved to another location. The Appellant complained to the Tribunal of harassment, victimisation and discrimination.

The Employment Tribunal dismissed the complaint. Whilst it found that Ms S had shared an image that was capable of giving rise to offence on racial grounds, her act of posting the message on her Facebook page was not an act done in the course of her employment and was therefore not one for which the Respondent could be liable. The Appellant appealed.

Held (dismissing the appeal) that section 109(1) of the Equality Act renders an employer liable for the acts of an employee done “in the course of employment”. Whether or not an act is in the course of employment within the meaning of that section is a question of fact for the Tribunal to determine having regard to all the circumstances: Jones v Tower Boot Co Ltd [1997] IRLR 168 applied. The relevant factors to be taken into account might include whether or not the impugned act was done at work or outside of work. It might not be easy to determine whether something was done at work if it is done online. In this case, the Tribunal did not err in law in concluding that Ms S’s act of posting the image on her Facebook page was not done in the course of employment; it was a private Facebook account, and the image was shared amongst her Facebook friends, one of whom happened to be a work colleague, BW, who took the subsequent step of showing the image to the Claimant at work. The outcome of the complaint might have been different if BW had been the target of the harassment complaint, as his subsequent act of showing the offensive image to the Appellant was done in the workplace and might be said to have been done “in the course of employment”. However, that was not the complaint that the Tribunal had to consider.

Religious Discrimination – Fundamental distinction between someone’s religious beliefs and the manner in which they choose to express them. If the latter, then no religious discrimination.

Richard Page -v- NHS Trust Development Authority UKEAT/0183/18/DA

The Claimant, who is a practising Christian, held the position of Non-Executive Director of an NHS Trust. He was also a lay magistrate sitting on family cases involving adoption decisions. The Claimant holds the firm faith-based belief that it is “not normal” for a child to be adopted by a single-parent or a same-sex couple. The public expression of those views led to disciplinary action in respect of his Magistracy. The Claimant participated in media interviews about that action without informing the Trust. The Trust instructed the Claimant to inform it before contacting the media. The Claimant was subsequently removed from the Magistracy. Before the Trust could speak to him about that removal, the Claimant took part in a further televised interview with BBC Breakfast News, during which he expressed the view that he could not see how adoption by a same sex-couple could ever be in the best interests of the child. The Claimant was thereafter suspended by the Trust and his term as a NED was not renewed. The Claimant issued claims of discrimination (direct and indirect) because of religious belief and victimisation. The Employment Tribunal dismissed the claims.

Held (dismissing the appeal): that the Tribunal had not erred in law in finding that the Claimant was treated as he was because of the manner in which the Claimant had expressed his beliefs (rather than because of the beliefs themselves), including the fact that he had spoken to the media without informing the Trust and had done so in the knowledge that his conduct would be likely to have an adverse effect on the Trust’s ability to engage with sections of the community it serves. That finding as to the reason for the Claimant’s treatment was a finding of fact which cannot be said to be perverse. The Tribunal had also not erred in rejecting the claim of indirect discrimination on the grounds that the Claimant was unable to show group disadvantage. The Tribunal had correctly applied the Court of Appeal’s decision in Mba v Merton London Borough Council [2014] 1 WLR 1501. Finally, the Tribunal had not erred in concluding, in accordance with the principles established in Martin v Devonshires Solicitors [2011] ICR 352, that the various reasons relied upon by the Respondent for its treatment of the Claimant were properly separable from the allegations of discrimination which the Claimant was making against the Lord Chancellor and others in respect of his removal from the Magistracy.

The Claimant, who is a practising Christian, held the position of Non-Executive Director of an NHS Trust. He was also a lay magistrate sitting on family cases involving adoption decisions. The Claimant holds the firm faith-based belief that it is “not normal” for a child to be adopted by a single-parent or a same-sex couple. The public expression of those views led to disciplinary action in respect of his Magistracy. The Claimant participated in media interviews about that action without informing the Trust. The Trust instructed the Claimant to inform it before contacting the media. The Claimant was subsequently removed from the Magistracy. Before the Trust could speak to him about that removal, the Claimant took part in a further televised interview with BBC Breakfast News, during which he expressed the view that he could not see how adoption by a same sex-couple could ever be in the best interests of the child. The Claimant was thereafter suspended by the Trust and his term as a NED was not renewed. The Claimant issued claims of discrimination (direct and indirect) because of religious belief and victimisation. The Employment Tribunal dismissed the claims.

Held (dismissing the appeal): that the Tribunal had not erred in law in finding that the Claimant was treated as he was because of the manner in which the Claimant had expressed his beliefs (rather than because of the beliefs themselves), including the fact that he had spoken to the media without informing the Trust and had done so in the knowledge that his conduct would be likely to have an adverse effect on the Trust’s ability to engage with sections of the community it serves. That finding as to the reason for the Claimant’s treatment was a finding of fact which cannot be said to be perverse. The Tribunal had also not erred in rejecting the claim of indirect discrimination on the grounds that the Claimant was unable to show group disadvantage. The Tribunal had correctly applied the Court of Appeal’s decision in Mba v Merton London Borough Council [2014] 1 WLR 1501. Finally, the Tribunal had not erred in concluding, in accordance with the principles established in Martin v Devonshires Solicitors [2011] ICR 352, that the various reasons relied upon by the Respondent for its treatment of the Claimant were properly separable from the allegations of discrimination which the Claimant was making against the Lord Chancellor and others in respect of his removal from the Magistracy.

In Kelly -v- Royal Mail Group Ltd UKEAT/0262/18/RN,

The Claimant worked as a postman. He had a poor attendance record generally and had triggered the Respondent’s Attendance Policy on several occasions due to repeated episodes of planned and unplanned absences. In 2017, the Claimant had two further periods of absence relating to surgery to treat Carpal Tunnel Syndrome in each of his hands. These absences triggered the policy again, the second period of absence triggering the final AR3 stage of the policy, which entitled the Respondent to review the whole of the employee’s attendance record. The Respondent decided that it had lost confidence in the Claimant’s ability to maintain a satisfactory attendance record and decided to dismiss him. The Employment Tribunal (ET) held that, although the decision to dismiss was harsh, it fell within the band of reasonable responses and the dismissal was fair. An allegation that the dismissal amounted to discrimination arising from disability was also dismissed on the basis that the Respondent did not know and could not reasonably be expected to know that the Claimant had a disability. The Claimant appealed on the grounds that it was perverse to conclude that it was fair to dismiss the Claimant for two periods of absence for corrective surgery for which the Claimant was essentially blameless, and for the Respondent to rely upon earlier absences. It was also said that the Tribunal erred in accepting that the Respondent did not have constructive knowledge of disability in circumstances where it did little more than “rubber stamp” the conclusions of Occupational Health in this regard.

The EAT Held. Dismissing the appeal that the Tribunal’s conclusion as to the fairness of the dismissal could not be said to be perverse. The policy expressly permitted earlier absences to be taken into account. Conduct that is in line with policy is unlikely to be unfair. The periods of absence for corrective surgery were, in each case, extended by other factors, and it was not outside the band of reasonable responses to take these absences into account. The policy applied to all absences, irrespective of fault or blame, and the Respondent was entitled to look at the overall pattern of absence in determining whether there was a likelihood of satisfactory attendance in the future.

As to disability discrimination, the Respondent had not simply rubber stamped the OH reports, but had, on the face of it, given independent consideration to the question of disability. Moreover, the OH reports themselves contained more than a bare assertion that the Claimant was not disabled. In these circumstances, there was no error in the Tribunal’s conclusion as to the absence of constructive knowledge of disability.