Ms Donelian started working for Liberata UK Limited in 1999, from 2004 she worked as a Court Officer. From around September 2008, Ms Donelian started to arrive at work late, leave early or take days off at a time (sometimes without notice). In one year, she was absent for a total of 128 days. She gave numerous reasons for her absence, including stomach upsets, wrist pains, head colds, stress and anxiety. To investigate Ms Donelian’s absences, Liberata did the following:
- Referred her to Occupational Health – The OH report concluded that she wasn’t disabled but it did not answer some of the questions put to the doctor;
- Obtained a more detailed report from a second doctor – This report didn’t respond properly to all of Liberata’s questions either;
- Corresponded with her GP; and
- Held return to work meetings.
In October 2009, Ms Donelian was dismissed for (1) bad attendance; (2) failing to comply with absence notification procedures; and (3) failing to work her contractual hours. Ms Donelian brought a number of claims in the Employment Tribunal (‘ET’), one of which was for a failure to make reasonable adjustments (that is, adjusting the attendance expectations).
The ET found that Ms Donelian was disabled, but dismissed the reasonable adjustments claim because Liberata didn’t know she was disabled. It was accepted that Leberata had no actual knowledge; the case turned on whether or not Liberata had constructive knowledge (that is, whether it should have found out, based on what it did know). The ET thought Liberata had done what it could reasonably be expected to do to discover any disability. Ms Donelian appealed to the Employment Appeal Tribunal, who upheld the ET’s decision. She further appealed to the Court of Appeal.
The Court of Appeal dismissed the appeal, concluding that Liberata did not have constructive knowledge of the disability. Its rationale was that an employer must have constructive knowledge of all three legal elements of a disability; which are (1) an impairment; (2) the prognosis; and (3) the effect on the employee’s ability to carry out normal day-to-day activities.
The case illustrates the importance of employers undertaking thorough investigations when looking into whether or not their employees have a disability. This will greatly assist in avoiding disability discrimination. This is because the more thorough the investigation, the better the chances are of employers both discovering and dealing appropriately with employees who have disabilities. Additionally, in the event an employer does not discover a disability, a thorough investigation can act as evidence of an employer legitimately not having constructive knowledge of the disability and thus avoiding liability for disability discrimination (like in this case).
By Zahid Reza
Image used under CC courtesy of Sherwood
The key points from the report (produced by the independent polling organisation YouGov) are as follows:
- Half of employers believe pregnancy in the workplace is an ‘unnecessary cost burden’
- 40% claim that women in their workplace ‘take advantage’ of their pregnancy
- Employers in finance were twice as likely as to hold negative views about the commitment of pregnant employees
- Research suggests that 54,000 new mothers are forced out of jobs every year because of maternity discrimination.
- The report states ‘it is clear that many employers need more support to understand the basics of discrimination law and the rights of pregnant women and new mothers’
Perhaps the most interesting finding is that six in 10 employers (59%) agree that a woman should have to disclose during the recruitment process whether she is pregnant. It also shows that there are pockets of employment law that employers don’t really understand.
The Equality Act 2010 protects employees from pregnancy discrimination within the workplace on the basis of being pregnant or maternity leave. Yet despite the last eight years of the Act being in force, employers are still discriminating against pregnant women today.
The research shows that women at job interviews are regularly asked questions about starting a family in the future. A recent survey of more than 1,000 British employers identify that six in ten believe women should have to disclose at interview whether they are pregnant and those employers revealed if those women are pregnant, they are reluctant to hire those who are.
Unbeknown to many British employers, those who ask potential applicants about their future family plans could be in breach of pregnancy discrimination provisions under the Equality Act 2010.
By Ava Bannister
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The Charity ‘Kick It out’ has reported an increase in discrimination across English football. So far this season, 111 incidents have been reported to Kick It Out from the top four English leagues. 64 incidents were from the Premier League (compared to 40 this time last year), with 47 being from the Championship, League One and League Two (compared to 29 this time last year). Incidents of discrimination across the top four leagues has rose by 38% compared to this time last year. Across professional football, 51% of reported incidents concerned racism.
Chair of Kick it Out, Lord Ouseley said:
“Our latest statistics reveal a significant increase in incidents of discrimination in football, which should act as a wake-up call to everyone in the sport”.
Does the law protect professional footballers as employees?
In 2013, legal provisions were removed which meant that employers were no longer liable for third party discriminatory harassment against their employees.
Before 2013, an employer could be liable for third party discriminatory harassment if they failed to take reasonable steps to prevent discriminatory harassment from a third party to their employee, provided that the employer knew the employee had been harassed by a third party on at least two previous occasions (whilst in the course of employment). This means that employers are no longer expected to ban troublesome, racist, clients for fear of facing discrimination claims from staff, for example.
Where does that leave discrimination in English football? At the moment, clubs are not liable for the actions of fans (who are a third party) if they abuse their footballers in stadiums. Maybe if the pre-2013 provisions were re-introduced, the risk of liability for football clubs would ensure that all football clubs across all levels take big steps to prevent their players being discriminated against on the football pitch. This could heavily contribute to eradicating discrimination in English football.
By Zahid Reza
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Footballer David Cox (who plays for Scottish League Two side Cowdenbeath) has suffered from depression since the age of 15. Since David made the decision to speak out about his mental health issues (including that he has attempted suicide and self-harmed), he has received abuse from by players and fans.
Some of the abuse he was subjected to included fans saying “go and hang yourself and do it right this time”; and players talking about “me slitting my wrists and stuff”.
David has implied that some fans come in with the mentality that as they have paid their money, they can abuse who they want, and then go home and forget about what they have said, not thinking about how their actions have affected the individual(s) subject to their abuse (particularly if the individual suffers from mental health issues). For David, he described the effect as “it bothers me for the rest of the weekend. It gets me in a bad place again”.
David said that players often gave him abuse, just to gain a competitive advantage, then later apologised for their actions.
David’s story arguably highlights the lack of awareness in society about the seriousness mental health-related harassment, as otherwise the fans and players would not abuse and mock David for his mental health issues. There has been much focus on dealing with mental health issues in the workplace, however maybe David’s story indicates that there should still be a wider focus on educating society in general on the seriousness of mental health issues.
The law recognises that a mental impairment can meet the definition of disability (and therefore attract the protection of discrimination law). However, from a legal perspective it is notoriously difficult for depression to be recognised as a disability, and is almost impossible without medical evidence. In light of David’s story, maybe the law should have a different test for a mental disability (rather than at the moment, where one legal test captures both mental and physical disabilities) that captures most forms of mental illness, so to give more individuals suffering from mental illness the protection of discrimination law.
By Zahid Reza
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There has been much documented about dealing with mental health (and avoiding mental health discrimination) in the workplace. The 2017 Mental Health at Work Report revealed that despite improvements, a lot of work still needs to be done, in particular to:
(1) encourage employees to talk about mental health issues with their employer; and
(2) improve the mental health training of managers.
Although clearly improvements in dealing with mental health in the workplace will provide more protection to employees who have mental health issues, this article investigates whether or not the law could do more to provide protection to employees who suffer from mental illnesses.
As it stands an individual isn’t protected by the law for ‘substance abuse’, even if the substance abuse is a manifestation of a mental illness. Discrimination law does not protect the employee who is addicted to anti-depressants for example, or self-medicating with alcohol. The Royal College of Psychiatrists has said:
“mental illness may lead someone to abuse substances. They may want to block out their symptoms or the side-effects of medication. They may have difficulties in sleeping, feel lonely or simply wish to boost their self-confidence”.
The charity Rethink, says:
“Some people use them to try and deal with their symptoms. This is called self-medication”.
Perhaps the law should intervene and provide protection to those who turn to substance abuse to deal with a mental illness that is legally recognised as a disability. A possible intervention could be to give these individuals access to the ‘discrimination arising from disability’ claim. This could force employers to ‘deal’ with the mental illness, rather than dismiss (on the grounds of gross misconduct) or sanction an employee as a consequence of the substance abuse, that arose from the mental illness.
Even if the above ‘possible’ intervention doesn’t suit, one could argue that the law should better recognise mental health discrimination in light of the clear correlation between mental illness and substance abuse, so as to protect those with legally-recognised mental disabilities abusing substances.
By Zahid Reza
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Chris Kirkland realised the dream of millions of youngsters in playing football at the highest level for his country (England), and representing great domestic clubs like Liverpool FC and Wigan Athletic. However he has recently opened up about his battle with depression whilst he was playing football, which ultimately led to his retirement after he left Bury FC before the 2016-17 season began.
Chris explained that his battle with depression started when he left Wigan Athletic for Sheffield Wednesday FC (because the football manager at the time expressed that Chris was not in his plans for the First Team). Chris says that he never wanted to leave Wigan Athletic.
Chris encapsulated his struggle with depression when he described having panic attacks and anxieties about mundane things such as traffic.
‘I didn’t want to do anything. I wanted to shut myself off. My head was just… I couldn’t think straight. I couldn’t wait to get to sleep at night to have a little bit of clear mind. But when I woke up in the morning, it all started again’.
Sheffield Wednesday were unbelievable. They came up with a routine’.
This story highlights how difficult mental conditions can be for employees to deal with, and also illuminates the reluctance employees may have in disclosing this information to employers. It also highlights that mental health can affect anyone, including highly coveted and successful footballers like Chris.
Employers should be aware that the legal definition of disability takes into account a ‘mental impairment’, as well as a physical one. Therefore if employers do not treat these employees with care, there is a risk of disability discrimination. Employers must be aware that just because they do not know, does not exempt them from liability for disability discrimination if they ‘should have known’ about the employee’s mental disability.
Therefore tips for employers to lower their chances of liability for disability discrimination include:
- Providing a medical questionnaire for employees when they start employment, giving them an opportunity to notify their employer of any illnesses.
- A positive working environment may encourage employees to be more forthcoming to employers with any mental illnesses, allowing employers to deal with them effectively.
- Another more obvious tip would be to provide adequate training for line managers so they can be better at detecting and handling mental illness (the Mental Health at Work Report 2017 highlighted that only 24% of line managers are trained in mental health).
There is no doubt that awareness of mental health is improving, and experiences like that of Chris only highlight how seriously employers should take mental health.
By Zahid Reza
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The topic of sexual harassment at work recently hit the headlines after the allegations against producer Harvey Weinstein and actor Kevin Spacey.
The publication of some dramatic statistics suggests that sexual harassment at work is a subject that hasn’t been addressed in depth.
Half of women in the UK have been victims of sexual harassment at work. However, this problem does not only concern women, as one in five men has experienced sexual harassment at his workplace. How can such a worldwide problem not have been seriously addressed before? A possible explanation to this lack of attention resides in the fact that the number of victims who report sexual harassment at work is very low. A research conducted in 2016 showed that victims do not report sexual harassment at work by fear of embarrassment (20%), or that they would not be taken seriously (24%),) and finally, that reporting it would affect their relationships at work (28%).
The Equality Act 2010 offers protection to employees and independent contractors. Sexual harassment is when “A engages in unwanted conduct […] and the conduct has the purpose or effect of violating B’s dignity, or creating an intimidating, hostile, degrading, humiliating or offensive environment for B“.
Sexual harassment can be verbal and/or physical. Inappropriate comments or touching, sexually explicit jokes by email or persistent requests for dates are examples of sexual harassment. Additionally, unwanted conduct related to the employee’s gender, such as criticising an employee’s childcare arrangement, is also considered to be sexual harassment. Finally, an employee is victim of sexual harassment if he/she is treated less favourably after refusing sexual advances or being victim of them.
Several actions can be taken to rectify the situation. The first step is to inform a person in a position of authority by making a note in writing.
The employer should then invite the employee to a grievance meeting and provide an outcome within a reasonable time.
A claim would have to be started within three months after the incident. Finally, it is crucial to gather evidence by writing down the times and dates during which the inappropriate behaviour took place, along with finding colleagues who have witnessed it.
An employer can be held liable for the actions of an employee, including sexual harassment. In order to prevent this, the employer can show that it took reasonable steps to prevent sexual harassment. This is done by having an anti-harassment policy, undertaking equal opportunity training and showing no tolerance when disciplining harassers.
Sexual harassment can render the working environment intolerable and these claims should always be treated very seriously. The law protecting victims of sexual harassment exists, however statistics have shown that denouncing sexual harassment can be difficult, especially when one’s job is at stake. Following the recent Hollywood allegations , women have started sharing their experiences and a real debate concerning sexual harassment at work has been started.
Hopefully, the current controversy will encourage both male and female employees to speak out and exercise their legal rights when sexual harassment occurs.
By Lily Wilde
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Before December 2002, there were no clear guidelines for the amount of compensation to be given for injury to feelings in discrimination cases. This question was always left to the tribunals and courts to provide guidance.
In the case of Vento v Chief Constable of West Yorkshire Police (Vento), the Court of Appeal set clear guidelines for the amount of compensation to be given in injury to feelings and set out three bands of potential awards for compensation in discrimination cases. The numbers in these guidelines were then increased by another case and the existing position (soon to be changed) is:
- Lower band (less serious cases) – £660 – £6,600
- Middle band (medium-length periods of discrimiantion)- £6600 – £19,800
- Top band – (long sustained periods of touching and harassment) £19,800 – £33,000
Until now, even a minor sexist comment would be valued at £660 and no case was worth more than £33,000 in injury to feelings.
A 2017 judicial consultation has recommended an increase to the Vento bands.
The consultation concluded that as of 11 September 2017, the following bands shall take effect:
- Lower Band (less serious cases): £800 to £8,400
- Middle Band: £8,400 to £25,200
- Upper Band (the most serious cases): £25,200 to £42,000
- Exceptional Cases: Over £42,000
It shall stay in the ET’s discretion which band applies to each case and where in the band the appropriate award should fall.
In light of the latest increases, employers should be extra vigilant about discrimination as they may end up having to pay more in ‘injury to feelings’ if found guilty of this. They may wish to review their insurance policies. Also as the employment tribunal fees have recently been scrapped, this only increases the chance of employers being subject to a discrimination claim (to which they may have to pay more in compensation in discrimination cases as a result) if they are not careful.
By Matthew Wheatley
The ‘Dying to Work Charter’ (Charter) is a voluntary charter which lays down guidance for employers in how to support workers with a terminal illness at work.
The TUC wants terminal illness to be recognised as a ‘protected characteristic’. Their idea is for terminally ill workers to enjoy a ‘protected period’ where they cannot be dismissed as a result of their condition. Royal Mail is the most recent employer to sign up to the Charter, meaning that now over 500,000 workers are now covered by this Charter.
Frances O’Grady, TUC General Secretary, said:
“Your job should be the least of your worries when you get a terminal diagnosis. Royal Mail has shown real leadership in this area, working with unions like the CWU to guarantee fair treatment for terminally-ill workers. Over half a million workers are now covered the Dying to Work charter, and we expect more employers to commit in the coming months.”
Dr Shaun Davis, Royal Mail Group Global Director of Safety, Health, Wellbeing & Sustainability, said:
“Everyone experiences terminal illness in a unique way, and at Royal Mail we want to ensure that any of our people diagnosed with such an illness is supported at work through a tailored and flexible approach. Signing up to the Dying to Work Charter builds on the policies and guides we already have in place to help employees, and their direct families, if they receive such a diagnosis.”
The current legal position for terminally ill workers is that some employers will expect them to continue working after a diagnosis. Some will dismiss after what they consider to be a reasonable period of absence; others will offer early ill-health retirement. We are aware of a case where Sainsbury’s gave £8,000 to an employee with a diagnosis of bone cancer and a 2 year prognosis, although it had no legal entitlement to do so This helped her to take time to deal with the diagnosis and put her affairs in order.
The TUC have not added any detail as to how long the protected period would be. Determining how long a terminally ill worker would be protected before an employer can dismiss may be seen as more of a moral question. This would require balancing the worker’s interest of support and protection with the employer’s interest in recruiting a suitable replacement so to maintain the smooth running of their business.
Additionally, if terminal illness was to be a protected characteristic it is likely that many workers bringing a claim will die whilst doing so. In that case, the law would provide that the family of the employee bringing a ‘terminal illness at work claim can collect any settlement or compensation.
The TUC’s idea would not be good for employers because introducing another protected characteristic would increase the number of claims. This, coupled with the recent scrapping of employment tribunal fees could result in employers dealing with many more tribunal claims from their workforce.
It will be fascinating to see whether more employers join the Charter, because if they do then this will only increase the chances of the TUC’s idea coming to fruition.
By Zahid Reza, Employment Paralegal
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A discrimination tribunal case earlier this month made an important decision on the ‘burden of proof’ provisions in the Equality Act 2010. These give the benefit of the doubt to the claimant in certain parts of discrimination claims and they are a cornerstone of the discrimination regime.
The claimant in this case was a postman. He had graduate and post-graduate level qualifications in IT and had applied unsuccessfully for over 30 IT-related jobs within the Royal Mail. He believed that the rejections were due to a case of direct discrimination on the grounds of race.
The burden of proof part of the Equality Act provides that if there are facts which suggest discrimination (in the absence of any other explanation) then it becomes for the respondent to prove that it did what it did because of non-discriminatory reasons.
The explanatory notes to the Act say “the burden of proving his or her case starts with the claimant. Once the claimant has established sufficient facts, which in the absence of any other explanation point to a breach having occurred, the burden shifts to the respondent to show that he or she did not breach the provisions of the Act”. The Act itself says that the burden in a discrimination tribunal case passes “if there are facts from which the tribunal could decide, in the absence of any other explanation, that discrimination has occurred”.
The Employment Appeal Tribunal (EAT) held that the Employment Tribunals have been getting the law wrong since 2010. When this happens at the employment tribunal, the parties have to get a new ruling from the employment tribunal, which sometimes means another trial. Tribunals have been relying on a two-stage test from the previous case of Igen v Wong which was decided under previous discrimination legislation. Employment solicitors have treated this as sound law for many years, even after the Equality Act regime took over.
The EAT acknowledged that s136(2) is clear and does not require the claimant to prove anything at the beginning. Instead, the tribunal must consider all the evidence, from all sources, so as to make a decision on the facts ‘as a whole’. These sources could be the documents available at trial, witness evidence, well-known facts or common sense inferences, even if none of the lawyers in the case thought it was important.
So, it is probably no longer sensible to talk about the burden of proof in a discrimination tribunal case being the claimant’s in the first instance.
The EAT said that an effect of this case is that submissions of no case to answer (i.e that the claimant has failed to get over the first hurdle by the half-way point of the trial) are now effectively a thing of the past. This is because what the respondent says also feeds into the question of whether the claimant has discharged the ‘burden of proof’. Employers should now be even more careful to call relevant evidence when defending discrimination claims. In this case, the respondent had not volunteered any evidence about the race or national origins of the successful job applicants. Nor had it brought the recruiting managers as witnesses. So it was not in a good position to defend the claim.
The logic behind the decision results in this case being an important authority on how to correctly adhere to s136(2) which plays a vital role at the heart of many discrimination cases. This outcome is solely because the wording of the Equality Act 2010 is different from what the old legislation used to say. We don’t think that this difference was intended by the House of Commons when they passed the Equality Act.
This decision could ensure that future tribunals place a responsibility on the respondent to give evidence in discrimination tribunal cases, which will no doubt give some claimants the edge.
Case report: Efobi v Royal Mail Group Ltd
By Ryan Wheatley