Summary The law does not require a formal mental health diagnosis to have been made for stress to be a disability, as long as the condition meets the definition of a disability under the Equality Act 2010. Law Section 6 of the Equality Act 2010 (EqA) defines a disability as a physical or mental impairment, that has a substantial and long term effect on a person’s ability to carry out normal day to day activities. J v DLA Piper (EAT) (2010) There is no requirement for a mental condition…

Summary Where a particular work requirement triggers a mental impairment, but that work requirement is not necessarily a day-to-day activity, but the employee is unable to return unless it is removed, does this mean they are disabled for the purposes of the Equality Act 2010? Law The Equality Act 2010 (EqA) defines a disability as a physical or mental impairment, which has a substantial and long-term adverse effect on an individual’s ability to carry out normal day-to-day activities.…

Summary Failing to put into place adequate support for a transitioning employee, resulting in deadnaming and less favourable treatment from those within and external to the organisation, can amount to direct discrimination by reason of gender reassignment. Law Section 13 of the Equality Act 2010 (EqA) focuses on whether an individual has been treated ‘less favourably’ because of a protected characteristic. The unfavourable treatment must be “because of” the protected characteristic. The…

Summary Creative accounting arrangements that permitted a bespoke pay cut arrangement favouring male over female managers can both be discriminatory and contrary to the law on equal pay. Law Direct discrimination is defined within section 13 Equality Act 2010 (EqA). When considering the question of direct discrimination, an ET must identify whether, because of the protected characteristic, the respondent has treated the claimant less favourably than it has treated or would treat others. As…

Summary The employment tribunal had to consider whether the reasons for the claimant’s refusal to wear a Covid mask amounted to a philosophical belief. Law Section 10 of the Equality Act 2010 details that religion or belief, or lack of religion or belief, are protected characteristics under that Act. In Grainger plc v Nicholson [2010], five principles were established by the Employment Appeal Tribunal that must be met for a religion or belief to be afforded protection under the Equality Act…

Summary Where reasonable adjustments are identified that would assist a disabled employee, these should be planned out and put in place without undue delay. ‘Aspirational’ adjustments alone are not enough to satisfy this duty.   Law Section 6 of the Equality Act 2010 defines disability as a physical or mental impairment, that has a substantial or long term effect on an individuals ability to carry out normal day to day activities. Long term is deemed as anything that has lasted or is…

Summary When an employer is in breach of the duty to make reasonable adjustments, when does the time limit to bring a claim run from, where the failure is the employers omission to act? Law The duty to make reasonable adjustments Under section 20 of the Equality Act 2010 (EqA), employers are under a duty to make adjustments for disabled persons in specific circumstances. This duty comprises three requirements, two of which are relevant to this case. These are:   1. A requirement, where a…

Summary Employers are under a duty to make reasonable adjustments for disabled employees, and should take care to fully assess whether or not those adjustments are required before deciding against them.   Law The claims of particular interest in this case came from the Equality Act 2010 (EqA), specifically an employer’s duty to make reasonable adjustments, under section 39(5) EqA and the right not to be treated unfavourably because of something arising in consequence of the individual’s…

Summary In situations where the duty to make reasonable adjustments applies, the onus is on the employer to use various means to find out how a disability is affected by a provision, criterion or practice they have imposed, and if that information is not provided, to take appropriate actions to make reasonable adjustments where they aware of the nature of the disability.  Law The Equality Act 2010 (EqA), under section s 39(5), places employers under a duty to make reasonable adjustments for…

Summary  Where a job is advertised in a potentially discriminatory manner, less favourable treatment only arises where the potential candidate has a genuine intention of applying for and taking on the role. Law In order to claim for unlawful sex discrimination, there must be some form of less favourable treatment. The case of Keane v Investigo (EAT) [2009] established that there is no less favourable treatment if the claimant has no genuine intention of applying for the role. In other words…

Summary Relying on a mistaken belief to treat a disabled employee unfavourably can be discrimination because of something arising in consequence of that disability, where that mistaken belief has arisen because of a circumstance created by the disability.   Law Under section 15 of the Equality Act 2010, a person discriminates against a disabled person where they treat them unfavourably because of something arising in consequence of the disabled person disability. This section of the law…

Summary The duty to make reasonable adjustments applies to the right to be accompanied at a formal hearing, particularly in cases where an employee has been suspended and prohibited from contacting their colleagues. Law Under the Employment Rights Act 1996, section 98, employers must have a fair reason for dismissal as well have followed a fair and reasonable process in coming to that dismissal. The case of British Home Stores v Burchell [1978] provides the following tests to be applied in…

Summary Discrimination can arise when a complaint of sexual assault and a grievance are mismanaged and not taken seriously, when the reason for this is the protected characteristic of the aggrieved employee. Law The Equality Act 2010 prohibits discrimination in employment and defines it as when a person (A) treats another (B) less favourably than A treats or would treat others, because of a protected characteristic. In this case, the protected characteristic was sex. Facts Whilst…

Summary In order to succeed in a claim for philosophical belief discrimination on the basis of ethical veganism, it must be shown that the belief is genuinely held, for example by showing that the individuals lifestyle has been modified or structured around the belief. Law NOTE The facts of this case took place when it was mandatory for all care home employees to either be vaccinated against covid or be medically exempt. The Equality Act 2010 prohibits discrimination against others on the…

Summary It is not race discrimination to tell a speaker with a strong accent that they haven’t been understood, where a health condition makes processing speech harder. It is however disability discrimination to question an employee absent on sick leave in a way that implies distrust and disbelief.  Law Under the Equality Act 2010, section 6, disability is identified as a protected characteristic. Section 13 of that same act outlines what is meant by ‘direct discrimination’ where it says, “…

Summary The EAT has held that when deciding on a comparator pool for the purposes of indirect discrimination,  this should not be drawn too small as to exclude other affected groups. Law The Equality Act 2010 (EqA) 19 Indirect discrimination (so far as is relevant) (1)A person (A) discriminates against another (B) if A applies to B a provision, criterion or practice which is discriminatory in relation to a relevant protected characteristic of B's. (2)For the purposes of subsection (1), a…

Summary When an employee is already being given a substantial benefit of guaranteed pay of 75% of salary during extended sickness absence, it is not disability discrimination to fail to pass on pay rises to their salary and thereby increase the amount of guaranteed pay. Law Equality Act 2010 13 Direct discrimination (1)A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2)If the…

Summary Where a redundancy process is accelerated, and as a result not carried out in accordance with organisational policy, in order to avoid paying out a substantial payment under the local government pension scheme, it can result in successful claims for both unfair dismissal and age discrimination. Law Unfair dismissal Employment Rights Act 1996 section 98 ERA provides (so far as relevant) as follows: (1) In determining for the purposes of this Part whether the dismissal of an…

Summary Where an employer fails to prevent a recurrence of sexual harassment by a third party towards one of its employees, they risk being liable for a claim of harassment related to sex. Law  Section 26 Equality Act 2010 (EqA): (1) A person (A) harasses another (B) if – a. A engages in unwanted conduct relating to a relevant protected characteristic, and b. The conduct has the purpose or effect of – i. Violating B’s dignity, or ii. Creating an intimidating, hostile, degrading,…

Summary When determining whether or not inappropriate conduct at work could be something arising in consequence of a disability, and therefore action taken against it be unfavourable treatment, there must be a connection between the ‘something’ and the disability. Law Section 15 of the Equality Act 2010 (EqA) (so far as is relevant to this case): “(1) A person (A) discriminates against a disabled person (B) if— (a) A treats B unfavourably because of something arising in consequence of B's…

Summary The EAT has overturned an ET decision rejecting a claim for indirect sex discrimination, deciding it did not make a difference to the outcome if the provision, criterion or practice applied was later revoked. Law Section 39 of the Equality Act 2010 (“EQA”) renders detrimental discriminatory treatment unlawful: (2) An employer (A) must not discriminate against an employee of A's (B)— (a) as to B's terms of employment; (b) in the way A affords B access, or by not affording B…

Summary In a preliminary hearing, a tribunal has held that stress and anxiety can fall within the definition of disability within the Equality Act 2010, when it has a substantial and long-term impact on an individual’s ability to perform day to day tasks. Law Section 6 of the Equality Act 2010: (1) A person has a disability if: (a) that person has a physical or mental impairment, and (b) the impairment has a substantial and long-term adverse effect on their ability to carry out normal…

Summary Age-preference policies and recruitment practices lead to unlawful age discrimination. Law Employment Rights Act 1996 Section 98(1): In determining for the purposes of this Part whether the dismissal of an employee is fair or unfair, it is for the employer to show – (a) the reason (or, if more than one, the principal reason) for the dismissal, and (b) that it is either a reason falling within subsection  By section 98(4): Where the employer has fulfilled the requirements of…

Summary Could dismissal without proper internal process, to shorten redundancy consultation and dismiss an employee before they became eligible for an enhanced pension payment, be a proportionate means of achieving a legitimate aim? Law Section 13 Equality Act 2010 (EQA) - direct discrimination (1) A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. (2) If the protected characteristic is…

Summary Permitting unequal access to toilets and toilet facilities between male and female members of staff can amount to direct sex discrimination, when the inherent reason for less favourable treatment is that of sex.   Law Section 39 of the Equality Act 2010 (EQA) renders detrimental discriminatory treatment unlawful: (2) An employer (A) must not discriminate against an employee of A's (B)— … (d) by subjecting B to any other detriment.   Direct discrimination is defined by…

Summary The EAT was asked to consider if the ET had erred in law in finding that the claimant had been the victim of marriage discrimination; it found the correct question to ask was; was the less favourable treatment because she was married, not (as found by the ET) because of whom she was married to? Law Section 4 of the Equality Act 2010 (EqA): 4 The protected characteristics The following characteristics are protected characteristics— … marriage and civil partnership; … Section…

Summary The Court of Appeal offers guidance on awards for injury to feelings in discrimination cases. Facts Ms Vento joined the West Yorkshire Police in December 1995. She alleged that after her marriage broke down she suffered bullying and sexual harassment by her superiors. She was dismissed in 1997. She brought a claim that her dismissal constituted unlawful sex discrimination. Employment Tribunal (ET) The tribunal upheld her claim. It awarded compensation of £257,844. This was made up…

Summary The EAT had to consider if an adjustment in a redundancy exercise of slotting a disabled employee into a new organisational structure was reasonable, or a vehicle giving the disabled employee an advantage over their colleagues, going beyond simply removing the disadvantage of their disability.   Law Equality Act 2010 (EqA): Section 20 (1) Where this Act imposes a duty to make reasonable adjustments on a person, this section, sections 21 and 22 and the applicable Schedule apply;…

Summary Is a belief in Scottish independence protected by the Equality Act 2010 as a philosophical belief? Law Section 10(2) of the Equality Act 2010 provides that; “Belief means any religious or philosophical belief and reference to belief includes a reference to lack of belief”. Grainger plc & others v Nicholson 2010 (i)                  it must be genuinely held; (ii)                it must be a belief and not an opinion or viewpoint based on the present state of information…

Summary The EAT had to consider if a settlement agreement could include a claim that had not yet arisen at the time it was signed, or if it was necessary for the employee to know they had a claim at the time of signing it? Law The Equality Act 2010: S. 147 (2)   A qualifying settlement agreement is a contract in relation to which each of the conditions in subsection (3) is met. (3)  Those conditions are that— (a)  the contract is in writing, (b)  the contract relates to the particular…