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Unfair Redundancy Selection Criteria | Employment Tribunal Case

Redundancy selection pool of one

What are ‘redundancy selection criteria’? 

Redundancy selection criteria are fair reasons for selecting particular employees for redundancy. Fair reasons can include skills, qualifications and aptitude, and should ideally be objective and measurable. 

The redundancy selection criteria are crucial in ensuring that a redundancy process is fair and lawful.

To help ensure employees are selected in a fair way, an employer should use a selection pool of employees doing the same or similar work to the extent they are interchangeable (can do each other’s work). If there is only one employee affected, they are classed as “self-selecting” and no selection pool is required.

In deciding which employees to make redundant, an employer must choose and apply appropriate criteria and pool, if appropriate.

Failure to select employees for redundancy in a fair way can result in unfair dismissal.  

Made redundant because the contract ended sooner than that of a colleague

In a recent Employment Appeal Tribunal (EAT) case – Mogane (M) v Bradford Teaching Hospitals NHS Foundation Trust , the EAT considered whether it was fair to make a nurse redundant on the basis that her fixed-term contract was due to expire before that of her colleague. 

M, the claimant and a Band 6 nurse, along with another similarly qualified nurse, were employed by the Trust on fixed-term contracts. 

In March 2019, due to financial circumstances of the unit in which both nurses worked, the Trust made the decision to reduce staff and make M redundant. 

M took the case to the Employment Tribunal as she believed her redundancy was unfair. 

The nurses’ contracts

M had been employed by the Trust since 2016 on a series of one-year contracts. The most recent one was due to expire on 1st June 2019. 

The second nurse had been employed for the first time on a two-year fixed-term contract shortly before the redundancy process commenced. Therefore, their contract was due to expire after M’s contract. 

Redundancy decision made without consultation

As the Trust struggled financially, they invited M to a meeting to inform her of the financial difficulties they faced. 

Shortly after the meeting, the Trust made the decision that M should be made redundant given that her contract was due to expire first.  

Unfortunately, no consultation took place prior to the redundancy decision being made deciding that the date of expiry of the contract would be the sole determining criterion used by the Trust. 

This effectively identified M as the person to be made redundant from her job. 

Following the Trust’s decision, a consultation with M took place regarding suitable alternative employment. However, none could be found. 

The Employment Tribunal’s decision

M took her employer – the Bradford Teaching Hospitals NHS Foundation Trust, to the Employment Tribunal. 

The Tribunal, however, dismissed her claim and deemed the dismissal fair. 

As M felt the Tribunal’s decision wasn’t satisfactory, she appealed the case at the EAT.

The Employment Appeal Tribunal’s decision

The EAT upheld M’s appeal and decided that the dismissal was in fact unfair. 

It noted that consultation is a fundamental aspect of a fair redundancy procedure – in which case the Trust didn’t follow. 

Furthermore, for a consultation to be genuine and meaningful, it needs to take place at a stage when an employee (or their representative) can still potentially influence the decision. 

IM was not given this opportunity as no consultation with her present took place prior to the Trust making the decision. Her redundancy had already been decided before she was told about it which left her with no option but to accept it. 

Moreover, the EAT found that it was not reasonable to adopt only one selection criterion for the redundancy which simultaneously decided the pool of employees and which specific employee is to be dismissed. The EAT noted that employers should not act impulsively when it comes to selecting employees for redundancy.

Lastly, the Trust’s decision to dismiss M whose contract was about to expire, immediately identified her as a pool of one and, therefore, as the person to be dismissed before any level of consultation took place with her. While in some circumstances a pool of one can be fair, the EAT found that, in M’s case, it should not be considered (without prior consultation) where there are multiple employees. 

The redundancy selection pool of one

Although the EAT didn’t specify that the selection pool for redundancy should have been expanded to include the other Band 6 nurse, they referred to the Trust’s decision (and the consequence of their choice) as “an arbitrary choice”. 

Whilst it is not the Tribunal’s role to interfere with any employer’s decision as to the pool, Employment Tribunals need to be satisfied that the pool chosen was one that any reasonable employer could adopt in all the circumstances.  

Choosing only fixed-term employees for redundancy purely on the basis of their fixed-term employment status could also amount to less favourable treatment under the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002, unless their selection can be objectively justified. 

Employment terminated unfairly? 

If your employment had been terminated by your employer by reason of redundancy and you believe the process they adapted was unfair, please don’t hesitate to get in touch with our experienced employment law solicitors for an assessment of your case. 

We work on a No win No fee basis, which means there are no upfront costs for you to pay. 

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care home worker dismissed over Covid19 vaccine refusal

Covid-19 vaccine refusal - nursing home worker fairly dismissed for refusing the vaccine-2

A nursing home worker fairly dismissed over Covid-19 vaccine refusal

Despite accepting Ms Allette’s (A) scepticism, Employment Tribunal has found her ‘fairly dismissed’ by her employer for Covid-19 vaccine refusal. 

The requirement to be vaccinated was in the Tribunal’s opinion a reasonable management instruction and A had no medical authority or clinical basis for refusing. 

Nursing Home’s requirement to get vaccinated

In December 2020, the Scarsdale Grange Nursing Home (SGNH) was due to begin the roll-out of the Covid-19 vaccine to its residents and staff.

Unfortunately, just before the roll-out, the nursing home was hit with an outbreak. The outbreak resulted in 33 staff (including A) and 22 residents being infected, and a number of resident deaths.

The vaccinations consequently had to be rescheduled from December 2020 to January 2021.

In order to ensure the staff get their vaccinations, SGNH made it a condition of continued employment.

At this point, there was no statutory obligation on care home workers to be vaccinated. 

The nursing home worker’s refusal to have the covid-19 vaccine administered

Ms Allette (A) claimed to only become aware of the vaccine roll-out and the continued employment condition on 12 January 2021 – the day before her vaccination was due to be administered.

A refused to have the vaccine providing the following reasons in a telephone call with the home’s director: 

  • She did not trust the Covid-19 vaccine’s safety,
  • The vaccine had been rushed without adequate testing,
  • She had read stories on the internet about a Government conspiracy,
  • No one could guarantee that the Covid-19 vaccine was safe. 

Refusal of the Covid-19 vaccine leading to a disciplinary hearing

Following A’s refusal of having the vaccine administered, a disciplinary hearing was arranged for 28 January. 

During the hearing, for the first time, A indicated that the vaccine was against her Rastafarian beliefs. The home’s director had not known before that point that A was a practising Rastafarian. 

The director explained to A that their insurers had advised them they would not provide Public Liability insurance for Covid-related risks after March 2021. Consequently, the nursing home would face the risk of liability if an unvaccinated staff were to infect other staff, residents or visitors.

Following the hearing, the director concluded that A did not have a reasonable excuse for refusing the Covid-19 vaccine. If she remained unvaccinated, she would pose a risk to the health of the home’s residents, staff and visitors. 

A decision was made that the home could not make an exception for one member of staff and her dismissal followed. The dismissal was on the grounds of refusing to follow reasonable management instruction.

A subsequently took her employer SGNH to the Leeds Employment Tribunal claiming unfair and wrongful dismissal. 

Employment Tribunal claim for unfair and wrongful dismissal for refusing the Covid-19 vaccine

In A v SGNH, the Employment Tribunal has found that the dismissal of A for refusing to be vaccinated against COVID-19 in January 2021 was fair. 

The tribunal accepted that SGNH’s primary legitimate aim was to protect its staff, residents and visitors.

The secondary legitimate aim – to avoid the risk of breaching the home’s insurance policy, was also accepted by the Tribunal.

The Employment Tribunal’s decision explained

In the employment tribunal’s view, the home’s new mandatory vaccination policy was in line with a pressing social need of reducing the risk to residents. 

A’s fear and scepticism about the vaccine were considered genuine. However, the Tribunal noted that they were unreasonable in the circumstances since she had no medical authority or clinical basis for not receiving the vaccine. 

In addition, the nursing home SGNH was a small employer with a legal and moral obligation and responsibility to protect its vulnerable residents. Most of them suffered from dementia and needed to be protected.

The Employment Tribunal, therefore, accepted SGNH’s submission. Its decision to impose vaccination in January 2021 had to be seen in light of the more limited state of knowledge about vaccines and the progress of the pandemic at that time. 

Given the nature and type of SGNH’s business and considering the vulnerability of its residents, the director of the nursing home was required to do some difficult decision-making. In the context of the case, the interference with A’s private life was considered proportionate.

In terms of the reasonableness test under S.98(4) of the Employment Rights Act 1996, read so as to give effect to A’s Article 8 rights, the tribunal made the decision that it was reasonable for the nursing home’s director to conclude that an employee who was only sceptical of the official advice did not have a reasonable excuse for refusing to follow the management instruction to have the Covid-19 vaccine administered.

The Tribunal also found that the director genuinely did not believe that his employee’s refusal was connected with religious belief as she did not disclose this information until later. 

Moreover, the Tribunal rejected A’s argument that the home’s director had unreasonably failed to inform her about the vaccine and to properly address her scepticism. It was found that he had referred her to advice from Public Health England (PHE) and the Government, which was widely available on the internet. It was concluded that A was capable of researching independent scientific material for herself.

During the tribunal hearing, it was presented to the director that there was no real benefit to be obtained from vaccinating A since she had recently recovered from Covid-19 and therefore would have antibodies. However, the tribunal accepted the director’s evidence that the advice from the PHE at the time was that it was possible to contract and transmit Covid-19 more than once.

In the circumstances, the employee’s dismissal was within the range of reasonable responses. 

Read the full transcript of the case here.

Have you been unfairly or wrongfully dismissed by your employer? 

If you believe you have been unfairly or wrongfully dismissed by your employer, get in touch with our expert Employment Law Solicitors today to discuss your case. You can either call us on 0800 612 9509, or complete one of our contact forms. Alternatively, complete our Employment Tribunal Claim Assessment. 

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SSP Temporary Amendment: Sick note required after 28 days

Temporary amendment to SSP self-certification period - extended from 7 days to 28

Temporary amendment to SSP self-certification period – extended from 7 days to 28

From December 17th until January 26th 2022, employees can self-certify sickness absence for the first 28 days without a sick note from their GP.

Normally, employees can self-certify sickness absence for the first 7 days. After that, they need to give their employer proof if they are ill for more than 7 days. However, to take the pressure off the NHS and to enable GPs to focus on the COVID-19 booster programme, a temporary amendment to the rule has been made and employees can self-certify for 28 days instead of 7.

If an employee started their sick leave before the 10th of December 2021, they are required to provide proof of their sickness if they have been ill for more than 7 days. If they become ill just before or during their holiday, they are allowed to take it as sick leave instead.

The self-certification period reportedly will revert to 7 days for absences beginning on or after 27 January 2022.

The temporary change is a cause of concern for many employers as it will make managing absences more complicated. However, if the company is happy to pay for a private sick note or ask the employee to attend an Occupational Health appointment, they are allowed to do so.

Employees must continue to notify their employers of their ongoing sickness.

Fit notes and proof of sickness after 28 days

If employees have been ill for more than 28 consecutive days and have taken time off, they must give their employer a sick note. This includes weekends and bank holidays.

If employees are self-isolating due to Covid-19 and are unable to work, they can get a free ‘isolation note’ from NHS 111. They do not need to contact their GP or hospital to get this.

Need advice of an employment law solicitor?

If you need help or advice on a specific situation and the new rules, please don’t hesitate to contact our experienced employment law solicitors.

Follow this link to read more about Statutory Sick Pay.

You can give us a call on 0800 612 9509 or fill in one of our contact forms.

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Women less flexible due to childcare responsibilities

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

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Health and Safety “Detriments” now extended to workers & employees

Health and Safety “Detriments” under S 44 ERA are now extended to workers as well as employees.

New Regulations, The Employment Rights Act 1996 (Protection from Detriment in Health and Safety Cases) (Amendment) Order 2021. extend the protection afforded to employees by S44 ERA 96 to workers also.

The extension to workers applies to any detriments taking place on or after 31 May 2021.

Link to Legislation
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Views that a person’s sex cannot be changed is a protected philosophical belief

 

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.

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Evidence about ‘protected conversations’ in an unfair dismissal case?

Yes, if the date of termination is in dispute, held the EAT in Basra v BJSS Limited.

Pre-termination discussions between employer and employee are protected under section 111A Employment Rights Act 1996 and cannot therefore usually be referred to by either party in an unfair dismissal claim, unless there has been “improper behaviour”. In Basra, however, the EAT held that there is an exception to this rule if the date of termination is in dispute.

The Claimant wrote an email to the Respondent in response to a without prejudice offer letter it had sent saying “today will be the last day at BJSS”. The Claimant then stopped attending work, and later brought a claim for unfair dismissal. BJSS argued the Claimant’s employment had ended by mutual termination and, in the alternative, the email was a resignation. The Claimant denied resigning and said he had been dismissed by BJSS at a later date. The tribunal, following Faithorn Farrell Timms LLP v Bailey, noted that s111A protection cannot be waived (unlike without prejudice negotiations) and excluded BJSS’s offer letter as protected under s111A ERA.

The EAT held that as the protection under s111A only applies to pre-termination negotiations, “the chronological line between what is, and what is not, admissible therefore lies on the point at which the contract is terminated”. The EAT went on to say that “where there is a dispute as to whether or not the contract was terminated on a particular date, the tribunal would not be in a position to say what evidence should be excluded until that dispute is determined”. Thus the tribunal needs to determine the termination date before applying s111A

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(ET1) Claim Form – Amending a Tribunal claim to add a new claim – right to argue a time point remains

Is the employment tribunal required, when deciding whether to give permission to amend a claim to add a new claim which may be out of time, to decide the ‘time point’?

Not necessarily, according to the EAT in Galilee v Commissioner of Police for the Metropolis.

An amended claim takes effect from the date when permission is granted, not the date of the original claim.

Therefore, granting permission to amend does not deprive the employer of the right to argue that the claim is out of time.

Further, it is not necessary to decide if the claim is out of time when deciding whether to grant permission to amend, save in clear cases. Permission to amend can be granted subject to the time point being decided at a later stage or the decision whether to grant permission can be deferred to the full hearing

 

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Good news for employee backdated holiday pay claims

In King v The Sash Window Workshop Ltd and anor, the European Court of Justice has held that the means of enforcing the right to paid holiday under the Working Time Regulations 1998 SI 1998/1833 is incompatible with the EU Working Time Directive (No.2003/88). On the EAT’s interpretation of Regs 13 and 16, where an employer grants only unpaid leave to a worker, the worker would be obliged to take leave without pay and then bring an action to claim payment for it. This result is incompatible with the right to paid annual leave under Article 7 read with the right to an effective remedy under Article 47 of the EU Charter of Fundamental Rights. The ECJ also held that, where the employer refuses to pay for annual leave, the worker’s holiday rights carry over until the termination of employment.

K worked for SWW Ltd as a self-employed commission-only salesman from June 1999. He was offered an employment contract in 2008, which included the right to paid annual leave. However, he elected to remain self-employed (under a contract that was silent on the issue). While K did take some holiday throughout his years of service, he was never paid for this. When SWW Ltd terminated his engagement in October 2012, K successfully claimed holiday pay before an employment tribunal, which accepted that he was a ‘worker’ for the purposes of the Working Time Regulations 1998. Among other things, the tribunal awarded him pay in lieu of annual leave accrued but not taken during previous years, also claimed as a series of deductions. The EAT allowed SWW Ltd’s appeal on this issue, holding that the tribunal had failed to make findings of fact to support its conclusion that K was prevented from taking his annual leave for reasons beyond his control. There was therefore no basis for departing from the usual position under Reg 13 that entitlement to leave expires at the end of the relevant leave year. K appealed to the Court of Appeal, which made a reference to the ECJ, querying whether Reg 13 is consistent with the right to paid annual leave under Article 7 of the Working Time Directive, given that (on the logic of the EAT’s analysis) the worker would first have to take unpaid leave before testing his or her entitlement to pay. It also sought clarification of the extent to which untaken paid leave can be carried over, for the purpose of claiming a payment in lieu of untaken holiday upon termination of employment under Article 7(2) of the Directive.

Advocate General Tanchev gave the opinion that employers are bound to provide an ‘adequate facility’ for workers to exercise the right to paid annual leave under Article 7, such as in the form of specific contractual terms or the establishment of a legally enforceable administrative procedure. Where no such adequate facility has been made available, any reference and carry-over periods that would otherwise fall within a Member State’s discretion must necessarily be disapplied. In such a case, the worker would be entitled on termination of employment to payment in lieu of annual leave untaken up until the date on which an adequate facility was made available.

a worker must be entitled to benefit from the remuneration to which he or she is entitled when taking his or her annual leave

The ECJ has now given its judgment and has gone further than the Advocate General. It noted that it was clear from its case law that a worker must be entitled to benefit from the remuneration to which he or she is entitled when taking his or her annual leave. Thus, a worker who is faced with uncertainty as to the level of remuneration to which he or she is entitled during the leave period will not be able to benefit fully from that leave as a period of relaxation and leisure, and is likely to be dissuaded from taking leave in the first place. When seen in that light, the right to paid annual leave cannot, therefore, depend on a factual assessment of the worker’s financial situation when he or she takes leave.

Turning to the Working Time Regulations, the ECJ observed that they implement the right to paid annual leave by way of two separate rights: a right to a period of annual leave under Reg 13 and a right to be paid in respect of that leave under Reg 16. Likewise, Reg 30 provides for two separate judicial remedies. The ECJ noted that, on the EAT’s interpretation of Regs 13, 16 and 30, a worker can claim breach of Reg 13 only to the extent that his or her employer did not permit him or her to take any period of leave, whether paid or not; and can claim payment under Reg 16 only for leave actually taken. This has the effect that, where the employer grants only unpaid leave, a worker is obliged to take leave without pay in the first place and then to bring an action to claim payment for it. The ECJ held that this result was incompatible with Article 7 of the Directive when read with Article 47 of the EU Charter. In K’s particular circumstances, he would be unable to claim after the termination of employment in respect of paid leave due but not taken, which would deprive him of an effective remedy.

As to the accumulation of the right to paid annual leave, the ECJ noted that, in the case of a worker who is prevented from taking paid annual leave due to sickness, case law has permitted national law to limit the worker’s right to carry over that leave to 15 months. That case law took into account not only the protection of workers but also the protection of employers, who might otherwise be faced with the risk that a worker will accumulate periods of absence of too great a length. In contrast, in the present case, there was no requirement to protect the employer’s interests – on the facts, SWW Ltd was not faced with organisational difficulties and indeed was able to benefit from K not taking any paid annual leave. It was irrelevant that SWW Ltd considered, wrongly, that K was not entitled to paid annual leave – it is up to the employer to inform itself of its obligations in this regard and an employer that does not allow a worker to exercise his or her right to paid annual leave must bear the consequences. The ECJ therefore concluded that the Directive requires a worker to be able to carry over and accumulate paid annual leave rights until the termination of his or her employment where those rights have not been exercised over several consecutive reference periods because the employer refused to remunerate that leave.

This case has significant implications for the right to holiday pay in the UK. It suggests that workers who are wrongly classified as self-employed contractors may be able to claim back pay in respect of unpaid annual leave going back many years when their ‘worker’ status is established. It also suggests that the Deduction from Wages (Limitation) Regulations 2014 SI 2014/3322, which limit back pay claims to two years, are incompatible with EU law.

 

ECJ Judgement – Allowance in lieu of annual leave paid on termination of the employment relationship

 

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EAT upholds finding of direct discrimination because of perceived disability

In Chief Constable of Norfolk v Coffey the EAT has upheld the decision of an employment tribunal that a police officer, who was turned down for a transfer to the Norfolk Constabulary because her hearing loss was marginally below the medical standard for police recruitment, had suffered direct discrimination because of a perceived disability. The Constabulary’s reason for refusing the transfer was the concern that the claimant would end up on restricted duties. This indicated that it perceived her to have a progressive condition which, by virtue of paragraph 8 of Schedule 1 to the Equality Act 2010, met the statutory definition of disability.

In 2011 C applied to the Wiltshire Constabulary to become a police constable. She attended a medical, at which it was discovered that she suffers from bilateral mild sensori-neural hearing loss with tinnitus. Although C’s hearing loss was marginally outside the range set down by the Home Office for police recruitment, the Wiltshire Constabulary arranged a practical functionality test which C duly passed before going on to work on front-line duties. In 2013 C applied to transfer to the Norfolk Constabulary. C attended a pre-employment health assessment, where the medical adviser noted that her hearing was ‘just outside the standards for recruitment strictly speaking’ but that she had undertaken an operational policing role with the Wiltshire Constabulary without any undue problems. He recommended that C undergo an ‘at work’ test, but this recommendation was not carried through by the Assistant Chief Inspector (ACI) who dealt with the application. Instead, the ACI declined C’s request to transfer on the basis that her hearing was below the acceptable and recognised standard, and that it would not be appropriate to step outside that standard given the risk of increasing the pool of officers on restricted duties.

C brought an employment tribunal claim for direct discrimination. It was not alleged that she actually had a disability; her case was that her hearing loss did not have, and was not likely to have, a substantial adverse effect on her ability to carry out day-to-day activities, including working activities. Instead, it was argued that she had been treated less favourably because she was perceived to have a disability, in the form of a progressive condition that could well develop to the point of having a substantial impact on her ability to carry out day-to-day activities. The tribunal considered that the only way to read the ACI’s comments about the risk of C ending up on restricted duties was that she perceived that C had a potential or actual disability which could lead to the Constabulary having to make adjustments to C’s role as a front-line police officer. Since this perception was the reason for refusing C’s transfer, the tribunal upheld the discrimination claim.

On appeal to the EAT, it was argued that the tribunal had erred both in respect of its finding that the ACI perceived C to be disabled and its finding that C had been treated less favourably because of that perception. On the former point, the EAT stressed that the question of whether a putative discriminator A perceives B to be disabled will not depend on whether A perceives B to be disabled as a matter of law. It will depend on whether A perceives B to have an impairment with the features which are set out in the legislation. Paragraph 8 of Schedule 1 to the EqA makes special provision in respect of progressive conditions. Where a person has a progressive condition that results in an impairment having an effect on his or her ability to carry out day-to-day activities, but the effect is not a substantial adverse effect, it will still be treated as such if it is likely that the condition will result in a substantial adverse effect in future. Although the ACI protested that she did not consider C disabled with the meaning of the EqA, her knowledge of the law was incomplete and did not include Paragraph 8 of Schedule 1. The reference to the risk of C being on restricted duties could only be read as the ACI perceiving that C had a progressive condition which could worsen. Thus, the tribunal had been entitled to find that she perceived her to be disabled.

Turning to whether the tribunal had been correct to find that there had been direct discrimination, the EAT accepted that a genuine difference in abilities will be a material difference between claimant and comparator. However, it saw no warrant for an employer’s flawed belief in a lack of ability to be a material difference. The tribunal was entitled to conclude that a person with the same abilities as C, whose condition the employer did not perceive to be likely to deteriorate so that he or she would require restricted duties, would not have been treated as C was. C had performed an active policing role in Wiltshire; she had been accepted at the interview stage; her rejection followed when the ACI ignored advice to rely on a practical assessment of C because, as the tribunal put it, she believed the C would become a liability to the force. The tribunal did not err in law in concluding that she had been subjected to direct discrimination.

Link to transcript: http://www.bailii.org/uk/cases/UKEAT/2017/0260_16_1912.html

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