Case Reports: C

Cargilfield School in Edinburgh has been fined following an incident in which a pupil suffered serious hand injuries.

Where an employer dismisses a disabled employee for misconduct caused by their disability, the dismissal can amount to unfavourable treatment because of something arising in consequence of disability under s.15 of the Equality Act 2010, even if the employer did not know that the disability caused the misconduct.

The statutory criterion of what is in the public interest so as to cause a disclosure to be protected does not lend itself to absolute rules, still less when the decisive question is not what is in fact in the public interest but what could reasonably be believed to be. The possibility that the disclosure of a breach of a worker’s contract may nevertheless be in the public interest could not be ruled out where a sufficiently large number of other employees shared the same interest.

1. The incompetent handling of a grievance was insufficient to give rise to an inference of discrimination.

2. Where there was no direct evidence of knowledge of a grievance which amounted to a protected act, in the absence of primary facts as to knowledge (or belief), the employment tribunal was not entitled to assume such knowledge (or belief) by the individual accused of victimisation.

There was no service provision change (SPC) causing there to be a transfer of employees under the Transfer of Undertakings (Protection of Employment) Regulations 2006 (TUPE) where a local authority cancelled a contract for a subsidised service and a separate company began to run a service for its own commercial benefit.

A poorly itemised pay statement led to uncertainty as to whether the employee was being paid at the correct rate.

The employment tribunal was required to reject a claim where there was no compliance with the early conciliation procedure and the claimant had indicated on the ET1 Form of Claim that she was exempt from early conciliation but, in fact, none of the exemptions applied.

The general rule is that a complaint of disability discrimination must be presented to an employment tribunal within three months of the date on which the act complained of took place.

In many cases, it is clear when the act complained of occurred. For example, if a dismissal is discriminatory, the act of discrimination takes place when the notice of dismissal expires — ie on the termination date. A rejection for an appointment or a promotion is usually a single act on a specific date.

Difficulties arise where there is continuing discrimination over a period of time. If this amounts to a series of distinct acts, the time limit runs from the date of each act. If there is continuing discrimination, the time limit starts from when the last act was completed.

Tribunals have discretion to extend the time limit for lodging a disability discrimination claim where they think it is "just and equitable" to do so. This is a broader discretion than in unfair dismissal claims, where the time limit can only be extended if the claimant can show that it was "not reasonably practicable" to present the claim in time. Case law shows that the exercise of the just and equitable discretion is the exception rather than the rule.

Victimisation is one form of unlawful discrimination. In the employment relationship, it occurs when an employer treats a person less favourably than a comparator because they have done a protected act, such as taking proceedings against them under disability legislation.

In this case, the claimant was a union member and the respondent was her union. She alleged disability discrimination when they withdrew representation and legal support in a claim against her employer after she had complained that the union was not giving her support appropriate to her disability.

Where teachers participate in sporting activities with pupils, it is usually an injury to a pupil that gives rise to legal action. However, in this personal injury case heard by the High Court, the claimant was a teacher who was injured during a mini-Olympics on a school residential visit.