Disability discrimination – section 15 Equality Act 2010 – unfavourable treatment
Disability discrimination – remedy – injury to feelings
Sex discrimination – section 19 Equality Act 2010 – indirect discrimination – disadvantage
During the coronavirus pandemic, as a response to the need for a number of its staff to remain at home either because they were shielding or for childcare reasons (and in cases where such staff were unable to perform their work from home), the respondent introduced a paid special leave policy, whereby such employees would continue to be paid notwithstanding their inability to work. As pre-conditions for entitlement to paid special leave under the policy, however, the employees in question first had to use up any accrued time off in lieu (‘TOIL’) and annual leave. In two separate group claims before the Employment Tribunal (‘ET’), it was complained that this (1) amounted to unfavourable treatment for the purposes of section 15 Equality Act 2010 (‘EqA’), and (2) gave rise to a particular disadvantage for women under section 19 EqA. The claims having been conjoined for hearing, the ET found that the treatment in issue was the removal of the flexibility and choice of taking TOIL and annual leave at the time of the employees’ choosing; this was held to be unfavourable under section 15 EqA and to be capable of constituting a particular disadvantage for section 19 purposes. The ET went on to uphold the section 15 claims but found that the claimants had not established any loss or basis for an award of injury to feelings. As for the section 19 claims, the ET did not find that the claimants had established the necessary group disadvantage for women so dismissed the complaints of indirect sex discrimination. Both the claimants and the respondent appealed.
Held: allowing the respondent’s appeal and dismissing the claimants’ appeal.
The ET had erred in finding that the preconditions for the grant of entitlement to paid special leave amounted to unfavourable treatment for the purposes of section 15 EqA. The ET had itself found that the matters complained of by the claimants were ‘preconditions to obtaining or consequences of paid special leave’ and had held that the respondent’s paid special leave policy was ‘favourable’ treatment. On the facts thus found, this was a case falling within the analysis in Williams v Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65 and the ET had fallen into error in allowing the claimants’ complaint to define its assessment of ‘treatment’ and thus to artificially separate out the conditions of entitlement to a benefit from the benefit itself. The decision to uphold the claimants’ section 15 claims must be set aside.
The claimants had appealed against the failure make any injury to feelings award in respect of the section 15 claims. That appeal was rendered academic given the conclusion on the respondent’s appeal against the liability finding on those claims. In any event, the ET’s decision on remedy revealed no error of law: it had permissibly concluded that no evidence had been adduced to demonstrate any injury to feelings.
The claimants had also appealed against the ET’s dismissal of the indirect sex discrimination claims under section 19 EqA on the basis that no group disadvantage had been shown. Again that appeal failed on the basis that the ET had reached a permissible decision on the evidence before it. In any event, the same analysis applied to the ET’s finding on ‘disadvantage’ (for section 19 purposes) as to its finding of ‘treatment’ (under section 15) and, in the alternative, its dismissal of the claimants’ claims would be upheld on this basis.
Citations:
[2022] EAT 121
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 12 September 2022; Ref: scu.680609
