EAT Disability Discrimination: Reasonable Adjustments – VICTIMISATION DISCRIMINATION – Other forms of discrimination
HARASSMENT
PRACTICE AND PROCEDURE – Perversity
Victimisation – section 27 Equality Act 2010 (‘EqA’); Disability discrimination by reason of a failure to comply with a duty to make reasonable adjustments – section 21 EqA 2010; Harassment – section 26 EqA 2010; Perversity challenge
The Claimant, acting in person before the ET, had made complaints of victimisation, disability discrimination and harassment. The Particulars of the claims, as pleaded, were not easy to discern and there had been earlier attempts to clarify the Claimant’s case. Although not entirely clear, it appeared that an ET at an earlier Preliminary Hearing had accepted the Claimant’s Further Particulars as amendments to his claim.
At the subsequent Full Merits Hearing, the ET had characterised the Claimant’s victimisation complaint as one of ‘associative victimisation’. Taking the view that such a cause of action was not permitted under the Equality Act 2010, the ET dismissed that claim. In any event, the ET found that the relevant Respondents had not known of the protected act relied on by the Claimant at the time of the meeting at which he said he had been subjected to detriment. Moreover, the Claimant had not been treated in the way he alleged at that meeting. The ET also dismissed the Claimant’s complaints of disability discrimination by means of a failure to make reasonable adjustments. It considered this claim limited to the failure to postpone a return to work meeting on 18 March 2013, in respect of which it did not consider that the Claimant had demonstrated any provision, criteria or practice and as regards which it found he had suffered no relevant disadvantage. As for the harassment complaint, this related to an alleged breach of confidence by the Third Respondent at the meeting of 18 March; the ET found there was no evidence that the Third Respondent had breached the Claimant’s confidence as alleged and further dismissed this claim.
On the Claimant’s appeal.
Held: allowing the appeal in respect of one aspect of ground 2 but otherwise dismissing the appeal.
The ET erred in its characterisation of the Claimant’s victimisation claim. It had been a claim of direct, not associative, victimisation. That said, the ET had gone on to consider the detriments alleged in this respect and had made permissible findings on detriments and on knowledge/causal connection that provided a complete answer to the claim in any event. The Claimant had not established that any of the findings in question were perverse.
The ET had also erred in limiting the Claimant’s reasonable adjustments complaint to the failure to postpone the meeting of 18 March 2013; his pleaded case had included a complaint about being assigned heavy duties upon his return to work after periods of ill health. Whilst it would have been better if the precise nature of the amended case in this regard had been recorded at an earlier ET hearing, it could not be concluded that the Claimant had withdrawn this complaint. That said, the ET’s unchallenged finding on the Respondent’s knowledge of the Claimant’s disability answered the complaint in respect of the earlier date. That left the complaint about being assigned heavy duties on 14 June 2013 and the appeal would be allowed in respect of the ET’s failure to deal with this matter.
As for the ET’s findings relevant to the meeting of 18 March, it had been wrong to find that there was no provision, criteria or practice but had reached a permissible conclusion on the question of disadvantage that answered the case in any event.
On the harassment claim, the Claimant contended the ET erred in not finding the First Respondent vicariously liable for another employee (Mr Spragg). The claim before the ET was, however, founded upon an allegation of breach of confidence by the Third Respondent. That was rejected. There was no separate complaint regarding Mr Spragg’s conduct.
Eady QC HHJ
[2016] UKEAT 0221 – 15 – 0806
Bailii
Equality Act 2010 27
England and Wales
Employment, Discrimination
Updated: 02 November 2021; Ref: scu.565391
