Disability discrimination: reasonable adjustments
Our experience of dealing with disability discrimination claims since the advent of the legislation in the 1990’s, and in particular the alleged failure to make reasonable adjustments, is that for all the complexity of the rules (and s 20 Equality Act 2010 which provides for the duty to make adjustments is on the face of it complex) in practice the tribunals apply a good measure of common sense to achieve the statutory purpose.
In Miller -v- Rentokil (March 2024) the Employment Appeal Tribunal upheld a first instance tribunal decision that the employer had not made reasonable adjustments when it dismissed a disabled employee rather than placing him in an alternative role on a trial basis. Mr Miller was a field-based pest controller who contracted multiple sclerosis and could no longer fulfil the role. He applied for an administrator role while Rentokil considered that and other jobs. He was unsuccessful following interview, and his employment was terminated. At the tribunal he argued that by failing to place him in the administrator role on a trial basis Rentokil had failed to make reasonable adjustments. The tribunal agreed and Rentokil appealed. The Employment Appeal Tribunal found that moving the Claimant to an alternative administrator role which did not require him to work at heights and work with some speed was potentially a reasonable adjustment which would remove the disadvantage. Mr Miller had shown that the role was potentially appropriate. The burden of proof then shifted to Rentokil to show that it was not reasonable to appoint him to the administrator role or even provide for a trial period.
Comment
We have dealt with similar cases ourselves in the past such as a probationary service officer client who suffered a head injury as a result of being knocked off his bicycle. In that case his employer was found not to have made reasonable adjustments when taking a narrow view of the work the claimant could do. In another case we were asked to advise our client an adverse tribunal decision, where they had, without taking our advice, rejected an application for employment for a production line worker who was profoundly deaf at the interview stage when he arrived with a sign language interpreter.
Unfair dismissal: Tribunal not allowed to substitute its own view for that of the employer
In many respects statutory UK employment law is loaded in favour of the employer. A good example of that is the ‘band of reasonable responses’ test applied by tribunals and courts when deciding whether a dismissal for a potentially fair reason is “reasonable” and fair in that sense.
In Vaultex -v- Bialas (March 2024) the claimant employee, who had a long, unblemished record of service was dismissed for gross misconduct after he posted a racist joke on the employer’s intranet. At first instance the employment tribunal held that the dismissal was unfair because he had a previously unblemished record and had apologised. It decided that any penalty beyond a final written warning (i.e. demotion or dismissal) fell outside ‘the band of reasonable responses’ i.e. a decision that an employer faced with the same set of circumstances could reasonably i.e. rationally take. In overturning the decision on appeal the Employment Appeal Tribunal concluded that:
…any tribunal properly applying the law could not have concluded other than that dismissal, however harsh the tribunal might think, was within the band of reasonable responses open to the employer in this case.
The tribunal had committed the cardinal sin of putting itself in the employer’s shoes.
Unsuccessful claimant ordered to pay employer’s tribunal costs
We often advise employer clients that one reason why employment tribunal claims are perceived by them to be a form of blackmail is that there is a “no costs regime”. The basic rule is that, except in specific limited circumstances, an unsuccessful party will not be ordered to pay any part of the other party’s costs.
In Omooba -v- Michael Garrett Associates Ltd a christian actor who was dismissed from a role playing Celie (a lesbian character) in a theatre production of The Colour Purple brought claims of direct religion or belief discrimination and breach of contract against Michael Garret Associates Ltd, her agency, after it terminated its relationship with her and LTT Limited who ran the theatre who terminated her contract. The contracts were terminated because shortly after the cast was announced a historic Facebook post was published in which Omooba had set out her belief that homosexuality was a sin. Remarkably, shortly before the tribunal hearing she made it clear that she would not, in the event, have played the part of Celie and would have resigned anyway.
The tribunal found that the reason for Omooba’s dismissal was the adverse publicity and risk of poor audience reception resulting from the publication of the Facebook post and the impact of that on the standing and success of the production, not her religious beliefs. The tribunal also awarded the respondents all of the legal costs incurred in defending the claims.
The employment tribunal’s decisions at first instance were upheld by the Employment Appeal Tribunal. Relevant to the costs award was the fact that the actor’s contract with her agent included an implied duty of good faith, which it believed she had breached as she herself said that would never in fact have played the role of Celie. She was in fact in repudiatory breach of both the express terms and the implied term of trust and confidence in contract. Her conduct was unreasonable and had no reasonable prospects of success. The tribunals also took into account that in fact the claimant actor was funded by third parties, Christian Legal Centre and Christian Concern Ltd which had provided her with representation and were materially interested in the claims she brought having used them for publicity.
Comment
A good way of putting an employment tribunal claimant at risk of an adverse costs order in circumstances in which any of his or her claims have little prospect of success is to apply for a “deposit order” which requires the claim to pay money into the tribunal as a condition of being allowed to proceed with the claims. This is particularly so in discrimination (and whistleblowing claims) where tribunals are reluctant to take the draconian step of striking out proceedings.
