Part 1 of this Bulletin, published last month, looked at developments in the areas of discrimination on the grounds of sex, equal pay, race, religion/belief and sexual orientation.
Part 2 examines the most important recent developments in the areas of disability and age discrimination, as well as illustrating a case concerning the rights of fixed-term employees not to be treated unfairly on the expiry of their contracts. The Bulletin also provides an update on compensation for injury to feelings available to successful claimants in cases of discrimination.
Under schedule 1 of the Equality Act 2010, anyone diagnosed with cancer is automatically classed as disabled and so is protected against discriminatory treatment, irrespective of how the condition is affecting him or her at that time, and irrespective of the future prognosis.
In Lofty v Hamis t/a First Café UKEAT/0177/17, the Employment Appeal Tribunal (EAT) had to determine whether an individual diagnosed with a pre-cancerous condition could claim that she was disabled for the purpose of the Act. The claimant, a café assistant, was informed by a consultant dermatologist that she had cancer cells in the top layer of her skin, ie an “in situ melanoma”. According to Cancer Research UK, such cells are not true cancers as they cannot, at that stage, spread to other parts of the body. She had treatment to remove the malignant cells as a result of which she was declared clear of any possible cancer. However, her employment was subsequently terminated as she continued to be absent from work for related health issues. She brought a claim to tribunal for disability discrimination (as well as one for unfair dismissal).
The employment tribunal held in the first instance that the claimant was not disabled as her condition was “pre-cancerous” and so did not amount to a true cancer. Her claim for unfair dismissal was also rejected.
On appeal, however, the EAT overturned the finding on disability. It noted that schedule 1 of the Equality Act 2010 makes no distinctions between different forms of cancer; it simply states that cancer is a disability. Thus all forms of cancer provide protection against discrimination. In this case, the claimant’s pre-cancerous cells meant that she had an in situ cancer and this was sufficient to amount to a disability for the purpose of the Equality Act 2010.
Knowledge of disability
In the earlier case of Gallop v Newport City Council  EWCA Civ 1583, the Court of Appeal stated that an employer could not defend a complaint of disability discrimination on the basis of lack of knowledge that the employee’s condition qualified as a disability in circumstances where the defence was based solely on a medical advisor’s opinion that the employee was not disabled. It was not appropriate for an employer to rely unquestionably or automatically on a medical advisor’s opinion especially where no supporting reasoning had been provided.
In the more recent case of Donelien v Liberata UK Ltd  EWCA Civ 129, the Court of Appeal upheld an employment tribunal’s judgment that the employer had plenty of evidence to support its belief that Ms Donelien, who had been dismissed for poor and erratic attendance, and failure to comply with the organisation’s absence procedures, was not disabled.
Although the tribunal concluded that Ms Donelien was disabled in law, it went on to rule that the employer did not know, and could not reasonably have known, that she had an underlying disability. There had been various different and conflicting reasons for her absences which appeared to be unrelated. Additionally, she had asserted that she was entitled to manage her own condition as she saw fit and attend work when she was willing to do so, which made it difficult for the employer to properly assess her condition or her capability to work. Furthermore, an occupational health advisor had advised the employer that she was not disabled. The employer in this case had (unlike the employer in Gallop) given proper thought and consideration to the question of disability, and had not just automatically relied on the medical advisor’s opinion.
In Toy v Chief Constable of Leicestershire Police UKEAT/0124/17, the claimant, a probationary police constable, had his engagement terminated on account of concerns about his performance. During discussions preceding the termination, he had stated that he believed that he had dyslexia — although he had not raised this issue previously. Following the termination, he brought claims to tribunal for discrimination arising from disability and a failure to make reasonable adjustments. The police force, in its defence, argued that it did not know, and could not reasonably have been expected to know, that the claimant had a disability.
It was conceded that the claimant was in fact disabled under the relevant provisions of the Equality Act 2010. The EAT, however, upheld the police force’s arguments, having accepted that the claimant was “not clear or certain that he was dyslexic”. His belief that he might be dyslexic was not sufficient to bestow knowledge of disability on the police and so they could not be held liable for any alleged discriminatory treatment.
Meaning of unfavourable treatment
The case of Williams v Trustees of Swansea University Pension and Assurance Scheme and anor  EWCA Civ 1008, concerned an employee who took ill-health early retirement with an enhanced occupational pension but claimed that the amount of his pension was discriminatory because it was based on his part-time salary rather than on his previous full-time salary.
Mr Williams suffered from Tourette’s syndrome, obsessive-compulsive disorder and depression and it was not disputed that he was disabled for the purpose of the Equality Act 2010. He had worked full time for the university for about 10 years when he moved to part-time working on account of his disabilities. Three years after moving to part-time work, he was granted ill-health early retirement as he was no longer able to work. Under the university’s pension scheme, his entitlement was to an immediate enhanced pension without any actuarial deduction. This was considerably more advantageous to him than the pension available to any non-disabled employee who took early retirement. However, because the main element of his pension entitlement was based on his final part-time salary, he took the view that this was unfavourable treatment. Consequently, he brought a claim to tribunal for discrimination arising from disability, pointing out that a full-time employee who became disabled and unable to work suddenly (for example as a result of a heart attack or stroke) would have been entitled to an ill-health retirement pension based on his or her full-time salary, as there would have been no intervening period of part-time working.
It fell ultimately to the Court of Appeal to determine the meaning of “unfavourable treatment” as defined in s.15 of the Equality Act 2010. The Court took the view that because the terms of Mr Williams’ pension were extremely advantageous to him, this could not be interpreted as “unfavourable” just because his pension would have been even more advantageous had he still been working full time when he retired. The phrase “unfavourable treatment” does not equate to the concept of “detriment” or to “less favourable treatment”, and so Mr Williams’ assertion that he was treated less favourably than a disabled employee who took ill-health early retirement while still working full time was not legally valid. The fact that Mr Williams’ advantageous pension would have been even more advantageous had his disability occurred suddenly while he was still working full-time could not lead to the conclusion that there had been “unfavourable treatment” under s.15 of the Act. Mr Williams’ claim was therefore dismissed.
Indirect disability discrimination
Cases of indirect disability discrimination can sometimes be difficult to make out due to the varying nature of individuals’ disabilities. A claimant has to show that his or her employer has, without justification, imposed a “provision, criterion or practice” which puts, or would put, people with his or her type of disability at a disadvantage when compared with people who do not have that disability, and that he or she is personally disadvantaged by that provision, criterion or practice. The phrase “provision, criterion or practice” has a broad meaning and will include non-contractual practices and decisions.
In United First Partners Research v Carreras  EWCA Civ 323 (also referenced in Part 1 of this Bulletin), the Court of Appeal upheld an employment tribunal’s decision that an employer’s expectation that a disabled employee should work long hours amounted to a provision, criterion or practice for the purpose of the Equality Act 2010. The employee had become disabled following an accident and consequently found it difficult to concentrate. Around six months after he returned to work, the employer began asking him (repeatedly) to work longer hours, and as time went on the request to work late progressed into an assumption that he would do so. As a result, the employee felt pressurised to agree. When he objected, he was told that if he was unhappy, he could leave — which he did. He brought a claim to tribunal for a failure to make reasonable adjustments. The claim succeeded.
Disability and dismissal
Discrimination arising from disability means treating a disabled person unfavourably because of something arising in consequence of his or her disability. Examples would include unfavourable treatment of an employee because he or she had become incapable of performing his or her job as a consequence of long-term illness.
In O’Brien v Bolton St Catherine’s Academy  EWCA Civ 145, the employee, a school teacher and department head, was dismissed on account of long-term sickness absence, which was held to amount to discrimination arising from disability. The Court of Appeal was subsequently tasked with deciding whether, once the tribunal had found that the dismissal amounted to unjustified discrimination arising from disability under the Equality Act 2010, it would follow that it must also be unfair under the Employment Rights Act 1996.
Ms O’Brien developed a stress-related illness following an assault by a pupil and began a period of long-term sickness absence. Her employer attempted to obtain information about her treatment, prognosis and likelihood of being able to return to work, but she declined to attend meetings or provide any meaningful information. The employer subsequently began formal medical incapacity proceedings, as a result of which Ms O’Brien was dismissed on the grounds of long-term sickness absence.
The employment tribunal found from the evidence that Ms O’Brien’s dismissal amounted to discrimination arising from disability and, although there were legitimate aims underpinning her dismissal (efficiency, cost reduction and the need to provide a good standard of teaching), the dismissal was not a proportionate means of achieving these aims and hence not justified. This was largely because the employer had failed to provide any clear evidence about any adverse impact on its aims caused by Ms O’Brien’s long-term absence from work.
The tribunal then had to determine whether the dismissal was unfair under the Employment Rights Act 1996, as the test for dismissal under that Act and the test for disability discrimination under the Equality Act 2010 are not the same. In this regard, the tribunal concluded that terminating Ms O’Brien’s employment on account of long-term sickness absence was, in all the circumstances, outside the “band of reasonable responses” because it was discriminatory. The Court of Appeal upheld the conclusion that the dismissal was unfair as well as discriminatory.
In Charlesworth v Dransfields Engineering Services Ltd UKEAT/0197/16, the EAT held that an employee’s dismissal was not because of his absence but rather because the employer had discovered that his role was redundant.
The employee, a branch manager, had been absent from work for two months as a result of cancer treatment. Cancer is automatically regarded as a disability under the Equality Act 2010. While he was absent, the employer distributed Mr Charlesworth’s duties among other employees and consequently found that the role of branch manager was not necessary. Following Mr Charlesworth’s return to work, the employer instituted redundancy proceedings and he was ultimately given notice of dismissal. He brought a claim to tribunal for (among other things) discrimination arising from disability.
The tribunal rejected the claim and its decision was upheld on appeal. Although the employee’s absence from work for cancer treatment was the context for the employer discovering that the branch manager role was unnecessary, it was not the cause of the dismissal. Mr Charlesworth’s absence from work had merely created circumstances in which the employer was able to discover that it could manage without his role and this could well have been discovered in some other way.
Refusal to work because of discriminatory demotion
In Rochford v WNS Global Services (UK) Ltd and ors  EWCA Civ 2205, the Court of Appeal had to decide whether an employee who had suffered disability discrimination was entitled, as a result, to refuse to carry out his duties.
Mr Rochford, having returned to work after an absence of almost a year due to a back condition (which amounted to a disability for the purpose of the Equality Act 2010), was refused the opportunity to return to his full role and was allocated duties below his level of seniority. He refused to do any of the work and as a result was dismissed for misconduct.
Although the allocation of lesser duties constituted disability discrimination, the Court of Appeal held that the dismissal for refusing to work was not discriminatory (although it was procedurally unfair). The employee’s refusal to work amounted to a breach of contract and misconduct even in circumstances where the employer’s refusal to permit him to work his full role amounted to disability discrimination. The Court stated “it is not the law that an employee who is the victim of a wrong can in all circumstances simply refuse to do any further work unless and until that wrong is remedied”.
Under the Equality Act 2010, discrimination because of a mistaken perception that an individual has a particular protected characteristic is unlawful. It does not matter whether or not the person in question does in fact have the protected characteristic in question; what matters is whether the treatment afforded to him or her is on the grounds of that characteristic. In the case of disability, however, it can be difficult for an employee to show that what his or her employer perceived met the definition of “disability” in the Equality Act 2010.
This difficulty was demonstrated in the case of Peninsula Business Service Ltd v Baker UKEAT/0241/16. Mr Baker brought claims of disability discrimination and harassment to tribunal. The EAT had first to determine whether his condition amounted to a disability in law. Mr Baker had a psychologist’s report which stated that he had dyslexia and referred to a learning disability, and a doctor subsequently recommended to the employer that he was likely to be considered to be disabled. The employer, however, disputed that Mr Baker’s condition amounted to a disability.
Mr Baker asserted that it did not matter (for the purpose of his claims) whether his employer had believed or accepted that he was disabled; it was sufficient that the actions taken were related to the protected characteristic of disability. The EAT, however, rejected this contention and ruled that Mr Baker’s claims could not succeed because he had not shown that his condition amounted to a disability as defined in the Equality Act 2010. This case could go to further appeal.
In contrast, the EAT in the case of Chief Constable of Norfolk v Coffey UKEAT/0260/16 accepted that the claimant had been subjected to unfavourable treatment because of a perception that she was disabled or might become disabled in the future.
Ms Coffey, a police officer working in Wiltshire Constabulary, requested a transfer to an operational role in Norfolk. She had some hearing loss but police guidance made it clear that this would not necessarily be a barrier to her appointment, subject to an individual assessment. Despite this, her application was rejected due to concern that she might not be capable of fulfilling all the duties of an operational officer. She claimed that she had been treated less favourably because of a perceived actual or potential disability.
On appeal, the EAT held that it was sufficient (for the claim to succeed) that Ms Coffey had been perceived as having a potential disability. The employer had taken the view that her hearing impairment (which was stable at the time) could have a substantial adverse effect on her abilities in the future and that she might have to be placed on restricted duties as a result. It did not matter therefore whether her hearing loss could, at the time in question, qualify as a disability for the purpose of the Equality Act 2010. Under the Act, an employee who has a progressive condition which currently has some effect on his or her ability to carry out normal day-to-day activities and which is “likely” to give rise to a substantial adverse effect in the future is deemed to be disabled now. “Likely” in this context has been ruled to mean “could well happen”, which is a relatively low hurdle.
The EAT took the view that there would be a gap in protection under the Equality Act 2010 if an employer who wrongly perceived that an employee’s impairment was likely to progress to the extent that it would have a substantial adverse effect on his or her ability to work could lawfully dismiss that employee. The EAT thus ruled that Ms Coffey had been treated less favourably than a hypothetical comparator whose condition was not perceived as likely to progress to the extent that he or she would need to be placed on restricted duties and that this less favourable treatment was because of a perception that she was disabled or might become disabled in the future.
During the last 12 months, cases of age discrimination at the senior courts have been far less frequent than those of disability discrimination and the key cases that have been determined tend in the main to be related to retirement and pensions.
The case of Sargeant and ors v London Fire and Emergency Planning Authority and ors ET Case No. 2202235/15, concerned a claim that the transitional provisions in the revised Firefighters’ Pension Scheme which were advantageous to employees close to retirement age were directly discriminatory to younger employees on age grounds and were not justified.
In contrast to discrimination because of any of the other “protected characteristics”, direct age discrimination (as well as indirect age discrimination) is permitted if it can be justified. To justify direct age discrimination, the employer must be able to show that the discriminatory treatment amounted to a proportionate means of achieving a legitimate aim and that the specified aim was of a public interest nature.
When the terms of the Firefighters’ Pension Scheme were revised in 2015 (as part of a general public sector pension reform), transitional provisions were introduced to protect employees who were close to normal pension age. These provided that employees who were within 10 years of the previous normal pension age (55, increased to age 60 in the new scheme) could remain in the old pension scheme; those who were between 10 and 14 years, 55 would have their benefits tapered; and employees who were more than 14 years away from pension age would transfer directly to the new, less favourable scheme. Claims were brought by a number of younger firefighters who asserted that the fact that the transitional provisions were less favourable to them than the terms available to older employees constituted unjustified direct age discrimination.
The London Central Employment Tribunal accepted that the transitional provisions of the new scheme were directly discriminatory against younger employees on the grounds of age and so the case centred around whether the terms were justified.
The tribunal concluded that the provisions were objectively justified and therefore lawful. The transitional terms, although age-related, were underpinned by several legitimate aims, namely:
the protection of employees closest to pension age
their expectation that their pension benefits would not change significantly as they approached retirement
avoiding a cliff edge for those who were between 10 and 14 years of normal pension age (by introducing the tapering provisions)
achieving consistency across the public sector.
Furthermore, the transitional terms, although related to age, amounted to a proportionate means of achieving these aims.
This case, along with some others, is likely to be appealed.
In Chief Constable of West Midlands Police and ors v Harrod and ors  EWCA Civ 191, the Court of Appeal upheld an EAT decision that the compulsory retirement of a large number of police officers consequent upon government-imposed budget cuts was objectively justified and did not therefore amount to unlawful indirect age discrimination. The police were entitled to decide to implement a process of compulsory retirement and (under Regulation A19 of the Police Pensions Regulations 1987) to select those to be retired from a limited pool of officers who had 30 years’ service or more (who were therefore entitled to a full occupational pension) even though this was clearly to the disadvantage of officers aged over 48 who might otherwise have wanted to continue working until their normal retirement age. The system for selection provided certainty and there was no other realistic method of selection that would have achieved the legitimate aim of attaining the maximum practicable reduction in the number of officers.
The compensation awarded to a successful claimant for unlawful discrimination is based primarily on the losses that the complainant has sustained as a result of the discrimination, but there can also be an award for injury to feelings. The amount of an injury to feelings award will vary depending on the nature of the discrimination, the extent of the insult to the individual, and the personal circumstances and the degree of hurt suffered. There is no fixed formula.
In Vento v Chief Constable of West Yorkshire Police (No. 2)  IRLR 102, the Court of Appeal laid down guidance for tribunals on awards for injury to feelings in discrimination cases by setting out three recommended bands of compensation. In Da’Bell v NSPCC  IRLR 19, the EAT held that these bands for compensation for injury to feelings should be increased to reflect inflation since the date of the Vento decision.
In Simmons v Castle  EWCA Civ 1288, the Court of Appeal ruled that the level of damages in certain types of civil claim should be uplifted by 10% in cases where the claimant would be unable to recover a success fee. Subsequently, in De Souza v Vinci Construction (UK) Ltd  EWCA Civ 879, the Court of Appeal upheld this principle, ruling that the 10% uplift should be applied to compensation awarded for discrimination by an employment tribunal. Under the Equality Act 2010, consistency in awards for discrimination compensation is required between the employment tribunal and the county court (in England and Wales) or the sheriff court (in Scotland) in respect of non-employment claims.
In light of the above decisions and following a consultation, the President of the Employment Tribunals for England/Wales and the President of the Employment Tribunals for Scotland each issued Presidential Guidance to tribunals with regard to the bands of compensation for injury to feelings in discrimination cases. They decreed that the bands should be uprated in line with inflation. Since 6 April 2018, the bands are as follows.
A lower band for less serious cases — £900–£8600.
A middle band for more serious cases — £8600–£25,700.
An upper band for the most serious cases — £25,700–£42,900.
Only the most extreme cases would attract an award for injury to feelings in excess of £42,900.
The law regards the expiry of a fixed-term contract without it being extended or renewed as a dismissal. The employee will be able (subject to him or her having at least two years’ continuous service) to bring a claim for unfair dismissal if his or her contract is not renewed or extended and there is still work to be done. The case of Royal Surrey County NHS Foundation Trust v Drzymala UKEAT/0063/17 demonstrates the need for employers to ensure that a fair and non-discriminatory process is followed when terminating the employment of a fixed-term employee.
The EAT held in this case that the dismissal of a locum consultant doctor on the expiry of the last of a series of fixed-term contracts was unfair (but rejected the argument that it was age discriminatory). The finding of unfairness was despite the fact that the employer had complied with the provisions contained in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002. The unfairness arose because the employer had failed to consult with the doctor, had not discussed the possibility of alternative roles with her and had not afforded her the right of appeal against her dismissal.
Although a dismissal on non-renewal of fixed-term contract is often fair on the basis of “some other substantial reason” under the Employment Rights Act 1996, the normal rules of fairness under s.98(4) apply. Complying with the relevant provisions in the Fixed-term Employees (Prevention of Less Favourable Treatment) Regulations 2002 will not be sufficient to ensure fairness as the principles of the law on unfair dismissal (having a fair reason for dismissal, carrying out a fair procedure and acting reasonably) apply in the normal way to dismissals that arise from the non-renewal of a fixed-term contract.
Following the abolition of employment tribunal fees in July 2017, there has been a dramatic increase in the number of cases being brought to employment tribunals. As some of these cases filter through to the appeal courts, it is likely that there will be a substantial body of material on which to report next year. We will look forward to that.