Disabled employee’s reduced bonus was not discriminatory.
by Martin Williams, September 6th, 2011
Thank you for your query and do not worry – the concept of an appropriate comparator is a difficult one to get your head around!
The general position is that an employee claiming direct disability discrimination must show that they have been treated less favourably than either a real or hypothetical comparator whose circumstances are not materially different to theirs (section 23(1), EqA 2010). Under the EqA 2010 direct discrimination rules, there is no need for a claimant to show that there is an actual person in existence with whom their treatment can legitimately be compared (known as a “real” comparator), since the correct comparison is with how the employer treats or would treat another person in general, not just someone with the same set of circumstances. Where no appropriate real comparator can be identified (as is more often than not going to be the case in situations such as that of Mr Chweidan), the tribunal has a duty to consider whether a case could be made out based on a “hypothetical comparator”.
Such a hypothetical comparator may be non-disabled or have a different disability to that of the claimant. I understand that this can seem a little strange, but there is method behind the seeming madness and there are a number of elements for a tribunal to consider in these circumstances to build up what can then be decided upon as a correct decision, and perhaps one of the most important of those elements lies in establishing the relevant “circumstances”.
For the purposes of these relevant “circumstances”, the comparator does not have to be an exact replica of the claimant in every respect with the exception the protected characteristic. Rather, the comparator must have those characteristics which the employer has taken into account in deciding to treat the claimant as it did, with the exception of the alleged discriminatory characteristic. So, in this case, where the employee amongst other complaints has claimed to have been dismissed due to his disability, but the employer argues that its decision was based on his lack of client base and so on, the comparator must be someone of the employee’s general experience who would be expected to achieve the same scope of client base and same level of target, but who did not share the same disability. The disability is therefore the defining characteristic that sets the two apart. If, when setting the disability aside the employer would have treated both employees the same, the court may well not make a finding of direct disability discrimination.
To sum up, the EqA 2010 direct discrimination test can be interpreted as asking two questions:
- Was the claimant treated less favourably than a comparator?
- Was the reason for that treatment a prohibited reason?
In previous case law it has been stated that the “comparator” issue should not be treated as a threshold to be crossed before the “reason why” issue is addressed. The focus must always be on the primary question: why did the respondent treat the claimant in this way? If there was a discriminatory reason, then it will be easy to show that the claimant has been treated less favourably than a hypothetical comparator.
The importance of the ACAS Code of Practice
by Martin Williams, August 31st, 2011
390,870 reasons why employers should follow a proper procedure when dismissing an employee:
A recent case in the Employment Tribunal in Wales saw the Claimant awarded £390,870.58 following a ruling that he had been unfairly dismissed on the grounds of disability discrimination. This is said to be Wales’ highest ever discrimination award and is believed to be the third highest disability discrimination award in UK history.
The case of Jones v Jewson Ltd has yet to be formally reported, but indications are that part of the award included an uplift due to an unreasonable failure to follow the Acas Code of Practice (“the Code”) on disciplinary and dismissal procedures.
The Claimant (Mr Jones) had worked for the Respondents for 22 years and was aged 55 when he suffered a stroke. After the stroke, Mr Jones’ doctor advised him that he should avoid stress at work. As Mr Jones’ role at the time involved him averaging over 60 hour weeks, it was generally agreed that this role would be stressful. It was also maintained that no role within the company was going to be without stress. As a result, after five months of sickness absence, Mr Jones was dismissed on the grounds of incapacity.
The tribunal found that the dismissal was unfair and amounted to disability discrimination by reason of failure to make reasonable adjustments. Such considerations are a crucial consideration in any such case. Had a less stressful role within the business been identified (or at the least even considered) for Mr Jones, it may have been that, within time, he could have recovered his good health and returned to work. Had the Respondent sought a full specialist medical report, they may have also discovered that the assumption that Mr Jones had poor prospects for recovery was ill founded. Mr Jones, in fact, made a full recovery within 11 months of suffering the stroke. Had the Respondents taken the advice of a specialist, or even simply waited for a longer period of time to have a more informed idea of Mr Jones’ prognosis before dismissal, they may have been £390.870.58 better off today. This case really does emphasise the importance of following a full and thorough procedure no matter how the situation may appear at any given time.
Included in the award made to Mr Jones was a sum of £15,000 for injury to feelings, and an uplift for failure to follow the Code which is believed to be in the region of £18,000. This was not the full uplift that the tribunal could have awarded (see below) but it does nonetheless re-emphasise the importance of following it. Crucially there are two key reasons for doing so as follows:
1. It can avoid an unfair dismissal claim
The Code is intended to help employers and employees deal effectively with issues of alleged misconduct or poor performance in the workplace. It should also be taken into account when dealing with capability issues. When deciding whether an employee has been unfairly dismissed for misconduct or poor performance, an employment tribunal will consider whether the employer has followed a fair procedure. In doing so, it must take account of any provisions of the Acas Code that appear to be relevant.
2. It can affect the level of compensation
If an employee brings a successful claim for unfair dismissal or a number of other common types of claim the level of compensation awarded to the employee can be affected if either party failed to follow the Code:
- If the employer unreasonably failed to follow it, the tribunal may increase the employee’s compensation by up to 25%.
- If the employee unreasonably failed to follow it, the tribunal may reduce their compensation by up to 25%.
In this case, the uplift was only in the region of 5%, the reasoning for which will no doubt become clear when the case is officially reported. It was perhaps felt a fair sum in a case where the usual cap on a compensatory award (which currently stands at £68,400) was exceeded by such a great amount (there being no limit on compensation payable in successful discrimination claims). Either way the lesson to be learned is stated loud and clear that the Acas Code is crucially important to a disciplinary situation of any kind and employers should not ignore it.
Indirect discrimination is justified on grounds of costs alone
by Martin Williams, August 3rd, 2011
The Employment Appeal Tribunal (EAT) in Cherfi v G4S Security Services Ltd has upheld a Tribunal’s finding that an employer’s refusal to allow a Muslim time off on the basis of cost alone was justifiable for what would otherwise have been an indirectly discriminatory policy.
Mr Cherfi was employed as a security guard by G4S and he regularly took time off on Fridays to attend afternoon prayers at a mosque. His employer stopped him from taking the time off on the grounds that all security guards were required to remain on site throughout the client’s operational hours including lunchtimes (for which they were paid). G4S argued that continuing to allow Mr Cherfi to leave the site would put the company at risk of losing the client contract. When Mr Cherfi complained, G4S offered to change his hours of work and offered him the option of working on weekends instead. Mr Cherfi did not accept this alternative arrangement and refused to work Fridays. He brought a claim for indirect religious discrimination alleging that G4S’s policy placed Muslims at a particular disadvantage.
Mr Cherfi, relying on Cross v British Airways, argued that economic considerations alone could not justify a discriminatory policy. G4S relied on the decision of Woodcock v Cumbria Primary Care Trust as authority that they could. The EAT in following the decision of Woodcock held that financial implications alone were sufficient to make the discriminatory policy reasonable and proportionate.
In making its decision, the EAT relied upon the fact that G4S would suffer financial penalties if it failed to provide the requisite number of security guards, the offer made by G4S to Mr Cherfi of alternative work patterns and the fact that there was a prayer room available on site that he could attend instead.
The EAT held that the requirement to remain on site was objectively justified as being a proportionate means of achieving the legitimate aim of meeting G4S’s operational needs.
This decision together with the authority of Woodcock indicates that the EAT’s approach to the relationship between cost and justification is moving away from its previous “costs plus” approach where an employer was required to establish some other reasoning for its practice, criteria or procedure (PCP) in addition to costs and towards a PCP which justifiably discriminates against an employee based on costs alone.
Discrimination claim against charity
by Martin Williams, August 3rd, 2011
Joint and several awards made against an employer and employee in a discrimination claim
The Employment Appeal Tribunal (EAT) in London Borough of Hackney v Sivanandan has held that where an employer and employee are found to be jointly liable for discrimination, they are both equally liable for the damages.
The Claimant had applied for employment with a charity but was unsuccessful. She claimed that she was not given the job because of a previous discrimination claim that she had made against the charity and subsequently brought claims for sex and race discrimination against the charity and Hackney Council, who funded the charity. She also named employees of the Council and charity as Respondents in the proceedings.
The EAT held that where there are multiple Respondents and particular losses cannot be attributed to individual parties, compensation must be awarded on an “indivisible” joint and several liability basis in accordance with the Civil Liability (Contribution) Act 1978 which affords no basis for apportionment of the liability of “concurrent discriminators” as between them and the claimant (as opposed to determining contribution as between themselves). The EAT distinguished from the decision of Way v Crouch [2005], which was a case where exceptional circumstances allowed for the just and equitable apportionment of damages to be allocated to each Respondent according to the seriousness of the conduct or negligence in question. Distinguishing from the decision of Way v Crouch, the EAT held that the division of liability between the parties regarding compensation was a matter to be dealt with between the “concurrent tortfeasors” themselves and was not to be determined by the EAT.
It follows that in accordance with the general principle of how liability for tort works, the Claimant will be able to enforce the award of compensation against either respondent in full, and can choose who to enforce it against if the Respondents do not make payment. Generally speaking, this will be of particular significance where an employer becomes insolvent or refuses to comply with an order by a Tribunal to pay compensation as the Claimant can then enforce the order against an employee who has been found to have committed unlawful discrimination resulting in them paying 100 per cent of the compensation award.
Employees should take heed of the possible consequences of how they conduct themselves at work. They face damage to their reputation and the very real prospect of being dismissed as a result of discriminatory behaviour.
Disabled employee’s reduced bonus was not discriminatory
by Martin Williams, July 29th, 2011
The Court of Appeal (CA) in JP Morgan Europe Ltd v Chweidan has reversed a finding by the Employment Appeal Tribunal (EAT) in a claim for direct disability discrimination, on the basis that disability should be the significant reason for the less favourable treatment of an employee and not merely something connected to it.
Mr Chweidan was employed by JP Morgan in the Hedge Funds Team. He suffered a serious back injury following a skiing accident and returned to work but worked fewer hours than he previously had as a result of his injury. He subsequently failed to increase his client base which resulted in a smaller annual bonus than he had received in the previous year (down to $450,000 from $798,000).
Mr Chweidan was subsequently made redundant and claimed that his treatment amounted to disability-related discrimination and direct disability discrimination. He lodged two separate claims to an Employment Tribunal (ET); the first being in relation to his reduced bonus and the second being a claim for unfair dismissal on the grounds of his disability.
The ET found that Mr Chweidan had been unfairly dismissed and had been subjected to direct disability discrimination both with respect to the bonus payment and the dismissal. JP Morgan appealed to the EAT who upheld the Tribunal’s finding of direct disability discrimination in both claims. JP Morgan then appealed to the CA.
JP Morgan’s main argument was that, although the EAT had ostensibly found that there was direct disability discrimination, it had confused direct discrimination with disability related discrimination. The EAT found that there was direct disability discrimination because Mr Chweidan’s disability was the reason why he could not work the relevant hours. However, that was not the test for direct discrimination.
The correct test for direct disability discrimination according to the House of Lord’s decision in Malcolm v London Borough of Lewisham, is if the employers would have dismissed a non-disabled person in a similar situation for the same reason then there was no direct discrimination. The EAT found that they would have done so and on that basis had erred in law in making a finding which wholly undermined and was inconsistent with the earlier conclusion that there had been direct disability discrimination. According to the Disability Discrimination Act 1995 (DDA) disability-related discrimination occurs where the disability is a significant reason for the less favourable treatment and not merely something connected to it. On this basis, the CA reversed the EAT’s decision.
This case demonstrates the narrow scope of disability-related discrimination claims under the DDA. As a result, the Equality Act 2010 has replaced it with “discrimination arising from disability” which is based on unfavourable treatment, so the disabled person will not need to establish that their treatment is “less favourable” than that experienced by a comparator.
Weapons at Work
by Martin Williams, June 10th, 2011
As an Amritdhari Sikh, individuals are required to wear five articles as a symbol of faith. Mr Dhinsa, who is a Sikh was a trainee prison officer who wore the five required articles. However one of those articles is a kirpan, being a small ceremonial knife or dagger worn in a sheath underneath clothing.
Mr Dhinsa’s employment was at Dovegate Prison, which is run by a company called Serco – who in turn, are under contract from the Prison Service. The Prison Service did have a policy in place banning anyone from wearing a kirpan inside a prison with the exception of Sikh chaplains. The policy was under review, but following that review it was decided that the policy would remain as it was and Mr Dhinsa was therefore prevented from wearing his kirpan inside the prison.
His employers did suggest that perhaps Mr Dhinsa could wear a replica kirpan, or that he could work in the gatehouse (where the kirpan policy would potentially not be applicable), but Mr Dhinsa refused.
Serco therefore terminated his contract of employment following which Mr Dhinsa started a claim in the Employment Tribunal for indirect race and religion discrimination, as well as racial and religious harassment.
His claims were unsuccessful. Fewer than 10% of Sikhs are Amritdhari, and therefore the policy banning the wearing of a kirpan did not amount to indirect race discrimination against the Sikh ethnic group. In addition, although the Tribunal found that the ban did put Amritdhari Sikhs as a disadvantage because of their beliefs, it was also found that from a security and safety perspective, the policy was legitimate and objectively justifiable.
By Rebecca Pitt
Indirect Religious Discrimination
by Martin Williams, June 9th, 2011
A recent case has further established the principles of indirect discrimination for religion or belief.
From 2005, a Muslim man, Mr Cherfi, worked as a security guard for G4S Security Services Limited. During the period from 2005 to 2008, Mr Cherfi would regularly leave his place of work on Friday lunchtimes in order to attend his local mosque.
In the autumn of 2008, this situation became unworkable for G4S Security, as they needed a specific number of security guards on site during operating hours. In addition, G4S suggested that Mr Cherfi’s working hours were changed so that he worked from Mondays to Thursdays, with the option of working on either Saturday or Sunday. Mr Cherfi refused, and ceased to work on Fridays altogether, using either sick days, annual leave days or authorised unpaid leave.
In spring 2009, G4S approached Mr Cherfi to explain that this situation could no longer continue and Mr Cherfi went on to make a claim against G4S for indirect religious discrimination.
His argument was that the requirement for guards to be on site at Friday lunchtimes placed Muslims at a disadvantage.
The Employment Tribunal did not agree, and subsequently, neither did the Employment Appeal Tribunal (EAT). The Tribunal had to consider the balance between the operational needs of G4S with the discriminatory effect on Mr Cherfi and it was found that guards required to remain on site was objectively justifiable as a proportionate means of achieving a legitimate business aim.
The Tribunal also took into consideration the fact that G4S had tried to accommodate Mr Cherfi’s needs by proposing different work shifts, and the fact that there was a prayer room at his workplace.
By Rebecca Pitt
Slap on the wrist for law firm
by Martin Williams, June 6th, 2011
Most people assume that sex discrimination affects female employees. However employers beware – males can equally be affected.
The Equality Act 2010 provides that it is unlawful to treat someone differently on the grounds of their sex.
Eversheds, a national law firm, were considering redundancies and in selecting employees for the redundancy pool, they chose Mr de Belin and his colleague Ms Reinholz. The latter was on maternity leave at the time. Eversheds then proceeded to score each employee against five different criteria. As Ms Reinholz was absent, Eversheds simply gave her the highest score possible for one of the criterion, which measured the time between a lawyer completing a piece of work and receiving it. Higher points were available to a quick turnaround.
Mr de Belin’s overall score of 27 ended up lower than Ms Reinholz’s of 27.5 and he was selected for redundancy. On the criterion described above, Mr de Belin had achieved 0.5 being the lowest score possible where Ms Reinholz was given 2 points, being the highest score possible.
A claim was made by Mr de Belin for direct sex discrimination and unfair dismissal. His argument was that Eversheds had artificially inflated Ms Reinholz’s score which discriminated against him. The Tribunal found that, without that artificial inflation, there was insufficient evidence to show that Mr de Belin would have been made redundant fairly.
Eversheds appealed the decision, but the Employment Appeal Tribunal upheld the original decision.
Employers should remember that whilst women on maternity leave do need to be treated equally, they cannot be treated more favourably unless it is proportionate. Giving the benefit of the doubt to an employee on maternity leave is not necessarily the best move to protect employers from other claims.
By Rebecca Pitt
Abuse of Police Powers
by Martin Williams, May 27th, 2011
Everyone is entitled to their own belief and indeed, the Equality Act 2010 prohibits discriminating against someone because of their belief, or religion (or non-belief or lack of religion!).
However, a recent claim was brought by a policeman (whose surname, ironically, is Power) who has a belief in “spiritualism”. He was employed as a trainer by the Greater Manchester Police Authority but his employment came to a swift end and was terminated after less than three weeks.
Mr Power claimed that he had been dismissed because of his religious or philosophical beliefs. One of the issues that became apparent was that Mr Power believed in life after death and that the dead could be contacted through mediums and psychics. Further, he believed that psychics could be useful to police work.
The first issue to decide was whether or not his beliefs actually amounted to religious or philosophical beliefs. This was found to be the case.
However, the Tribunal decided that he had not been discriminated on the grounds of his beliefs. The reason for his dismissal was that he was unsuitable to train young police officers. The Tribunal also ruled that his distribution of spiritualist posters and CD-ROMs at work was an unacceptable way for Mr Power to express his beliefs and this contributed to his dismissal.
Mr Power presumably didn’t visit a psychic before deciding to appeal the decision, as his appeal failed. The Employment Appeal Tribunal said that his dismissal was clearly not based on his spiritualist beliefs, but on the unacceptable manifestation of those beliefs.
Employers can be happy with this decision, as it shows that indirect discrimination can sometimes be justifiable.
By Rebecca Pitt
Anti-hunting stance is a philosophical belief
by Martin Williams, April 7th, 2011
An employment tribunal has made a landmark ruling that a philosophical belief in the sanctity of life extends to strongly held anti-hunting beliefs and that this belief should be protected from discrimination in the same way as religion.
The tribunal held that Mr. Hashman’s beliefs constituted a philosophical belief for the purposes of the Employment Equality (Religion or Belief) Regulations 2003. The Regulations prohibit discrimination in the workplace on the grounds of religion or philosophical belief which are now incorporated into the Equality Act 2010.
Mr. Hashman claimed that he was sacked from his job as a sub-contracted gardener at Orchard Park when his employer discovered his opposition to hunting.
The Employment Judge said that for belief to be covered by the Regulations it must be consistent with the test set out in Grainger v Nicholson, as such the belief:
- Must be genuinely held;
- Must be a belief not an opinion;
- Must be a belief as to a weighty and substantial aspect of human life and behaviour;
- Must attain a certain level of cogency, seriousness, cohesion and importance;
- Must be worthy of respect in a democratic society.
Orchard Park claimed that Mr. Hashman’s beliefs were not worthy of respect within the parameters of the Regulations as he continued to work at the organisation even after he had discovered that a prominent hunting enthusiast was employed there. They argued that Mr. Hashman’s conduct was totally conflicting with his professed beliefs which were “incoherent, inconsistent and politically motivated by class war and endorsed violence”.
The Tribunal rejected this argument and commented that the fact that Mr. Hashman continued to work at Orchard Park after discovering that his employers were pro-hunting did not mean that his beliefs lacked cogency or cohesion.
The Tribunal found Mr. Hashman’s beliefs about fox-hunting to be “truly part of his philosophical beliefs both within the ordinary meaning of such words and within the meaning of the Regulations”.
This decision raises questions about the extent to which an essentially moral issue qualifies as a philosophical belief for the purposes of protection under discrimination law. Whilst the Employment Judge emphasised that the decision was “very much based on facts”, the result is indicative of an adoption of a broader approach by the Tribunal when interpreting the religion or belief discrimination provisions.