Discrimination – recent cases
Following a break for lunch, the afternoon session kicked off with a presentation from Paul Scholey of Morrish Solicitors reviewing the impact of recent cases. The range of topics covered by his talk was expansive stretching from sex and death to vegetables with a number of cases on religion and belief. He began by speaking about a French case Xavier X v TSO. The complainant had vigorous sex while away on business for the weekend and subsequently died. An industrial court in France found that he was on business from Friday to Monday and sex was a natural activity, much as eating or showering, so his family won their claim for an industrial accident.
A second case of Forbes v LHR Airport highlighted a different interpretation of ‘in the course of employment’ when an offensive online posting of a racialist nature was done by an employee but found not to be in the course of their employment. Both cases addressed the issue of what is “in the course of employment” and came to different conclusions.
In a case, Raj v Capita Business Services Ltd, a complaint by a man who was managed by a woman who stood behind him massaging his neck, back and shoulders. He lost his case as tribunal found conduct did not amount to sexual touching. Respondents lied according to the tribunal findings and the complainant argued that the burden of proof had therefore shifted. But tribunal said the mere fact of a lie by the employer in this case did not shift burden of proof.
Paul then referred to the House of Commons Women’s and Equality Committee Report on enforcement. He reported that the Government had said no to the recommendation that an employer should meet complainants’ legal costs in full. Specific wording mandated for NDAs also rejected as were Exemplary damages. The government has accepted that it should look at time limits for such claims. Access to legal advice will also be looked at. However Paul was pessimistic about the outcome of the government’s considerations.
On disability the issue about whether an employer ought to have known about a disability was raised in the case of A Ltd v Z. Although originally found in favour of applicant as although applicant had not disclosed disability the employer must carry out an assessment which was detailed and coherently reasoned. However the case was lost on appeal at EAT because the applicant had denied having a disability throughout her employment although it was recognised that employees may not always talk about their disability.
Paul then moved to vegetables and the case of Conisbee v Crossley Farms Ltd and Others. In this case the tribunal found that vegetarianism was not a belief. But tribunal did say that they may have found differently had the claimant been a vegan. A more recent case is due to look at the specific argument of whether being a vegan can be classified as a belief.
Paul then addressed the issue of perceived.disability – a police constable had applied to join force but failed the hearing test. The force said that gap was so small it would let her in. She worked for a couple of years and transferred to a new force who checked her hearing again and whilst it had not changed the employer thought it would get worse. She pursued a claim but could not say she was disabled. The Appeal court said that this was perceived disability and could be pursued through a disability claim which she then won.
In the case of Page v NHS the complainant had strong views objecting to same sex adoption which he continually went on about. The NHS dismissed him as executive director. Because he had kept going on about it the NHS won their case saying it had not dismissed him on belief but his continuing pronouncements on it.
Finally Paul addressed Injury to feelings. He explained that there are three bands to determine compensation for injury to feelings. In this case the tribunal awarded £16000 for discrimination, £5000 for aggravated damages and £3000 for injury to feelings. Respondent argued that this had been a single act of discrimination and should have been in the lower band of awards. The EAT said that the whole situation had to be considered and the complainant had suffered as a result of the manner of the respondent’s actions in dealing with this case.
Click here to download Paul’s presentation.