Last reviewed 19 July 2016
In this article, Kathy Daniels, BSc, FCIPD, SFHEA, Employment Law Author and Lecturer, looks at recent case law relating to discrimination and the implications of the rulings.
Age discrimination: nicknames in the workplace
Nicknames are often seen as terms of endearment, but a recent case has suggested that care should be taken if the nickname relates to a protected characteristic (a feature covered by discrimination legislation, such as age, race, gender, etc) in some way.
In Dove v Brown and Newirth Ltd , the employee was aged 60 years when he was dismissed after many years of long service. He was dismissed because a significant amount of his work was reallocated to head office, but he argued that the act of dismissal was age discrimination.
He relied on two pieces of evidence. First, he was referred to by the nickname of “Gramps”. This nickname had originally been given to him by his line manager who was considerably younger than him, and it had been used for many years. Dove had also referred to himself as Gramps. Second, there had been comments by customers about his traditional approaches and commenting that he was “long in the tooth”.
Dove was successful and was awarded just over £63,000. The nickname was seen as evidence of their being an ageist attitude in the workplace.
Points to note.
Discourage nicknames that relate in any way to a protected characteristic. Even if they are used endearingly, there is always the risk that the employee will claim that they are discriminatory.
Disability discrimination: when medical advice is that there is no disability
If an employer argues that it did not know that an employee was disabled, it could be assumed that it will be accepted that the employer cannot be accused of disability discrimination. The question is what the employer ought to have known, whether this is actual or constructive knowledge.
In Gallop v Newport City Council , the employee had been absent from work on a number of occasions with a stress-related illness. The occupational health professionals advised that he was not disabled, as defined in the Equality Act 2010. When he returned to work, he was accused of bullying others and due to this, and his absence record, he was dismissed. He claimed unfair dismissal and disability discrimination.
The employer argued that it did not know at the time of dismissal that Gallop was disabled. Indeed, it had specifically been advised that he was not disabled. However, this argument was not accepted. The Court of Appeal ruled that the employer did have constructive knowledge that the employee was disabled because it knew that the employee had a physical or mental impairment that was having a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.
Points to consider.
If you have an employee who has the characteristics of disability, presume that he or she is disabled.
Always consider what reasonable adjustments you can make if an employee is disabled.
Disability discrimination: defining a normal day-to-day activity
The Equality Act 2010 defines a disability as being a physical or mental impairment which has a substantial and long-term effect on a person’s ability to carry out normal day-to-day activities.
There is no specified list of “normal day-to-day activities” and, hence, it is possible for it to be interpreted quite widely. However, it has always been interpreted as meaning something that a person does on a daily basis as part of life, rather than something that is part of work. This interpretation has been challenged in the case of Banaszczyk v Booker Ltd .
The employee worked in a warehouse where he was required to move up to 210 items, weighing up to 25kg per hour. He had a back problem. He was dismissed when he continually failed to meet his targets and he claimed disability discrimination.
The employer argued that he was not disabled because lifting items of this weight, and in this quantity was not a “normal day-to-day activity”. However, the Employment Appeal Tribunal (EAT) has disagreed. The EAT has referred back to the EU Equal Treatment Framework Directive and guidance from the Court of Justice of the EU in similar situations. The Court of Justice has previously said that an impairment is something which limits the participation of an individual in professional life on an equal basis with other workers. Lifting the items was part of the individual’s professional life and, hence, it was a normal day-to-day activity.
This is despite the guidance notes to the Equality Act 2010 saying that “inability to move heavy objects without assistance or a mechanical aid, such as moving a large suitcase or a heavy piece of furniture without a trolley” is not a normal day-to-day activity.
It does seem that the ruling of the EAT does not fit with the guidance notes, or the usual approach to deciding the definition of disability so it is possible that this case will be appealed.
Points to consider.
Until this case is appealed, if it ever is, you should interpret “normal day-to-day activities” more widely than you might have done in the past.
Again, you must consider what reasonable adjustments can be made if an employee is disabled.
Religious discrimination: allowed to refuse leave to attend festivals
Another case is a useful reminder that there is no automatic right to time off to attend religious festivals. In Gareddu v London Underground Ltd , the employee was a Catholic and from Sardinia. Every August, he spent five weeks in Sardinia with his family attending religious festivals. In 2014, he was told that he would not be allowed to have five weeks of leave in August in future because of the difficulties it caused for the team. He claimed religious discrimination.
He was unsuccessful. It was not possible to show that Catholics were required to attend the festivals and, hence, it could not be shown that there was a negative impact on Catholics as a group. On that basis, his claim of indirect discrimination failed.
Points to consider.
Although there is no automatic right of employees to have time off to attend a religious festival, you should always consider all requests fairly and equally.
If it is not possible to allow an employee time off, make it clear if a request could be considered more favourably on a future occasion.
Ensure that you treat all employees equally. Do not allow one religious group time off but refuse another.
Race discrimination: a requirement to speak English in the workplace
It is quite possible that you will have employees whose first language is not English. Can you insist that they speak English in the workplace? This was debated in the case of Kelly v Covance Laboratories Ltd .
Kelly was Russian. She spent a lot of the time, during working time, on the phone speaking Russian. She was working in a laboratory where animal testing took place and her employer was concerned about her conversations. The organisation had previously been infiltrated by animal rights activists and there was concern that this might be happening again. So that they could monitor what she was doing, Kelly was asked to speak English while she was working.
In addition, there were concerns about her performance and other matters which led to a capability process being put in place. She resigned and claimed race discrimination.
She was unsuccessful. She could not show that being asked to speak English was treating her less favourably than others. Her claim of harassment was also unsuccessful because it was not accepted that asking her to speak English violated her dignity.
Points to consider.
You can ask employees to speak English during working time, particularly if this is to facilitate working relationships.
It would be much more difficult to argue that it was acceptable to insist that employees spoke English during breaks when they were socialising together. You would have to have a sound business reason for doing this, and this would be unlikely.