The Implications Of The Equality Act

In order to determine whether Joanna may be entitled to make Bill more sympathetic to her request, it is necessary to consider the implications of the Equality Act 2010 on the discrimination claims arising out of disability. Disability is one of the protected characteristics, which could form basis for a claim in discrimination. In determining what claim Joanna could have, it is necessary to consider her condition and whether it could be described as disability as per section 6(1) of the Equality Act 2010. Under this section disability is defined as a physical or mental injury, which has a considerable and long-term effect on the person to carry out day-to-day activities. The long-term effect, as provided by Schedule 1, section 2(1), needs to have lasted, or is likely to last, for at least 12 months, or even for the rest of the person’s life. In the present case, Joanna’s injury has lasted for 4 months, however according to her doctor, it is unlikely to be rectified in a short term. This would, therefore, suggest that her injury is likely to fulfil the requirement of the injury having to have long-term effect, provided that it lasts for at least 12 months.

Schedule 1, section 4 states that the injury must be such that it affects the person’s ability to carry out normal daily activities. It appears that Joanna’s injury is causing her problems with her day-to-day work, as well as outside of work, where she requires assistance from her sister with normal daily activities. Taking this into account, it could be argued that Joanna’s injury fulfils the requirement set out in this section.

It could further be argued that by going for massages in order to reduce, even though temporarily, her back pain, Joanna is effectively taking measures that may, in long term, assist with the recovery, which is covered in Schedule 1, section 5(1).

Section 20 of the Equality Act 2010 provides that the employer has a duty to make adjustments for disabled people. This duty states that where there is a “provision, criterion or practice" that puts a disabled person in disadvantage when compared to those who are not disabled, then reasonable steps need to be taken to avoid the disadvantage (s.20(3)). Furthermore, where a disabled person would without an additional aid be put in a disadvantage, then reasonable steps need to be taken to provide such aid (s.20(5)). Failure to comply with this duty would signify discrimination against the disabled person, as set out in section 21(2).

Taking this into consideration, it could be argued that Joanna would be able to make Bill more sympathetic to her request, by ensuring that he complied with the duty to provide adjustments for disabled persons. These adjustments might include allowing her to take occasional longer lunch breaks in order to be able to have massages, which would help her recovery. He might also need to ensure that her workload is adjusted to her capabilities, so to avoid further pain and assist her recovery. If he failed to follow this duty, Joanna could have a claim against Bill for discrimination arising from disability. Discrimination arising from disability, as set out in section 15(1), occurs where a person is treated less favourably because of something arising as a result of their disability. Bill might argue that his actions were simply means of achieving a legitimate aim, which, if accepted as legitimate, could justify his actions. However, discrimination with an aim of reducing costs is unlikely be seen as lawful.

(b) In the event Joanna’s pay is reduced or she is dismissed due to her disability, she would be entitled to bring a claim of direct discrimination as well as unfair dismissal.

Direct discrimination, as set out in section 13(1) occurs where a person is treated unfavourably solely because of their protected characteristic. In order for a claim of direct discrimination to succeed, the claimant needs to show that a comparator, i.e. another person with the same characteristics, but without the disability, had been, or would have been, treated in the same way. In this case it would appear that Sally had been treated in the same way, although she does not suffer from disability. However, it could be argued that the reasoning behind Sally’s treatment is based on the fact that she took time off work to look after her sick relative, and therefore she is arguably being subjected to discrimination by association. In this case, therefore, Joanna’s claim of direct discrimination may still succeed.

If Joanna’s pay was reduced, then, according to the Equality Act 2010, that would be considered unlawful and discriminatory. Disabled employees should be given all opportunities for promotion, pay increase and training that are also available to persons who are not disabled. Therefore, should Joanna be denied to receive performance related pay on the basis of her disability, then this will arguably be direct discrimination.

Any dismissal based on the person’s disability will be classed as automatically unfair. In this case if Joanna were to be dismissed, she could claim unfair dismissal on the basis of direct discrimination and since there is no justification for cases of direct discrimination, her employer would be liable.

(c) In case any of Joanna’s claims are successful, she might be awarded remedies such as recommendation to remove or reduce the effects of discrimination, or even an order for compensation. In removing the effects of discrimination, her employer might be required to permanently remove the note of her poor performance from her personal records. An order for compensation would include any financial losses suffered by the claimant, as well as injury to feelings.

In Da’Bell v NSPCC [2010] IRLR 19, the tribunal considered the claim of disability discrimination and the employer’s failure to provide reasonable adjustments, which is now covered by section 20 of the Equality Act 2010, and awarded the claimant a substantial amount.

In Vento v Chief Constable of West Yorkshire Police [2003] IRLR 103, the tribunal considered loss of earnings, as well as future loss of earnings. In this case, this amount was reduced, however the case established that tribunals are not restricted by an upper limit when considering loss of earnings. Joanna may be entitled to recover pecuniary losses in the event of dismissal.

Question 2

(a) Section 9(1) of the Equality Act 2010 defines race to include colour, nationality and ethnic origins. According to this definition it is clear that Mrs McDonald, who is Afro-Caribbean, falls under this definition of group of persons with protected characteristics. Any race discrimination is to be considered unlawful, unless there are certain occupational requirements that would not prohibit discrimination. In this case, Mrs McDonald's race is not an occupational requirement, therefore any discriminatory behaviour will be considered unlawful. On the basis of the facts of this case, it is clear that the treatment Mrs McDonald was subjected to was racially motivated with an aim of causing her distress. This would be considered to be direct discrimination. Furthermore, the manner in which discrimination was carried out by Angela and Bob could amount to harassment. Harassment is defined by section 26(1) of the Equality Act as any unwanted behaviour conducted with an aim of violating person’s dignity, creating intimidating, hostile, degrading, humiliating or offensive environment. It is clear from the facts of this case that both Angela and Bob had created an intimidating, hostile and offensive environment for Mrs McDonald.

As an employer, FF is under an obligation to provide protection to its employees against any form of discrimination and harassment. Failure to provide such protection could result in the relationship of trust and confidence between the employer and employees being damaged. Section 109(1) of the Equality Act provides that the employer may also be vicariously liable for acts of their employees. If the employer is aware of harassment and fails to take action to prevent it from happening or reprimand those taking part in it, then he may also be liable for any claims arising out of this. The important issue to consider is whether the act occurred during the course of employment. This issue was considered in Jones v Tower Boot Co Ltd [1997] IRLR 168, where it was held that the term “in the course of employment" should be considered to have an ordinary every day meaning, and the tribunals will consider the facts of each case carefully when determining whether the act had occurred during the course of employment. Since the attacks on Mrs McDonald occurred after both Angela and Bob finished their shifts and before her shift started, the employer may argue that this does not technically constitute as being in the course of employment. The fact that their shifts had either ended or had not yet started would most likely be irrelevant, as the incidents occurred in the workplace, which might be sufficient evidence for the purpose of establishing vicarious liability.

In this case FF's personnel manager seems to be unaware of the company's discrimination and harassment policy, as well as of proper grievance procedure. His advice to Mrs McDonald is unlikely to be a correct approach. Furthermore, he is aware of her claim of harassment and his failure to act could amount to the employer having a claim of direct discrimination brought against them.

Mrs McDonald could bring a successful claim against Angela and Bob as well as against FF. In terms of damages she might be awarded, she would probably be more successful in bringing a claim against FF rather than the individual employees.

(b) All employers should have a grievance procedure in place, and such procedure should be carefully followed. In order to progress her claim, Mrs McDonald could speak to the personnel manager and raise, for the second time, her grievance and attempt to have it resolved internally. Since she has been in employment for 8 months, she does not fulfil the requirement for a successful claim of constructive unfair dismissal, under which a person must be in employment for at least 12 months.

If she feels that the issue cannot be resolved internally, then she could take legal action under the claim of direct discrimination and harassment. However, tribunals will also require the evidence that all necessary steps had been taken to try to resolve the issue internally.

Any medical reports should also be obtained from her doctor as these will serve as evidence of the effect harassment has had on her health and will be of particular value in determining any potential costs. When considering cases of harassment, tribunals will take into account the effect the environment, as described in section 26(1)(b), has had on the victims of harassment. Victim’s perception, as set out in section 26(4) of the EA, is of high importance as it will have a serious impact on the case.

Mrs McDonald could therefore attempt to resolve her grievance internally, however if she feels that this is no longer a possibility, she could take legal action against both the employees and the employer. Furthermore, if it can be shown that the employer had not followed a grievance procedure, any award could be adjusted by up to 25% in Mrs McDonald’s favour.

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