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Published 16 August 2021
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Discrimination in the workplace update

Discrimination in the workplace is rarely out of the legal headlines, and for employers, it can feel like a minefield.  With that in mind, in this post, we’ve summarised three of the most recent decisions along with our commentary about what each case may mean for employers and employees alike.

Indirect discrimination

In the recent case of Wisbey v City of London Police, the claimant was a police officer who had a form of colour blindness. Despite his impairment having no effect on his ability to work, following an eye test, he was temporarily restricted from firearms and advanced driving duties although after more tests, he was later reinstated. He brought a claim for indirect sex discrimination against his employer (because a significantly higher proportion of men suffer colour vision impairments than women).

The issue:

If there has been unintentional indirect discrimination, section 124(4) and (5) of the Equality Act require a tribunal to consider making a declaration or recommendation first before deciding whether to order compensation (under previous provisions, tribunals could not award compensation for unintentional indirect discrimination).

Under EU law, member states must ensure that victims of discrimination receive appropriate remedies, including compensation. In this case therefore, the Court of Appeal had to decide whether section 124 provision is compatible with EU law.

The findings:

The employment tribunal found that there had been indirect discrimination but only in relation to the restriction on advanced driving. However, the tribunal did not award anything for injury to feelings as it said the discrimination was unintentional. The employer had not known that the claimant would be at a disadvantage in an eye test.

The Court of Appeal found that the requirements in section 124(4) and (5) did not prioritise one remedy over another and don’t stop tribunals making an award for compensation although in the usual course of events, a tribunal will make a declaration before awarding compensation. However, in this case, the decision not to award compensation was not wrong.  The claimant had claimed injury to feelings in respect of the firearms ban but it was the driving aspect which had been found to be discriminatory.

Comment

This case is a reminder that an employee will need to provide evidence of injury to feelings in order to succeed in a claim for compensation. It also serves as a reminder of the approach tribunals will take in claims of this nature.

Disability Discrimination

In the recent case of All Answers v W and Another, the claimants alleged they had suffered disability discrimination on the specific dates of 21st and 22nd August 2018. The respondents denied that the claimants’ impairments had had a substantial and long-term adverse effect as at August 2018.

The issue

The issue for the Court of Appeal to decide was whether, when deciding whether an impairment is long term, a tribunal can take into accounts events that occurred after the act of discrimination (which in this case was in August 2018).

The findings

The Court of Appeal held that the issue of whether an impairment has lasted or is likely to last at least 12 months must be decided by reference to the facts that existed at the date of the discriminatory act.

Comment

Assessing whether an impairment is long term can be complex and this case is helpful in clarifying the information that should be taken into account when determining this.

Direct Discrimination

In another recent case (Commissioner of the City of London Police v Geldart), the claimant was a serving police officer entitled to a London Allowance. During her maternity leave she was paid an allowance equivalent to maternity pay. She successfully claimed direct sex discrimination by way of the reduction in the total amount paid to her during her maternity leave.

The issue

The two issues centred on the interpretation of the Police Regulations 2003 and the reason for non-payment of the allowance.  

The findings

The Court of Appeal found that the Police Regulations did not provide for the London Allowance to be reduced during maternity leave. However, the court also found that the employer had genuinely misinterpreted the regulations when they treated the London Allowance in the same way as pay. The London Allowance is only available to officers available for work, and the claimant was not available, and it was for this reason and not for reasons of her sex, that the allowance was not paid. However, the case was sent back to the tribunal for a claim in respect of indirect discrimination.

Comment

Whilst this case might seem narrow in scope, it’s an important reminder of the need for close and careful scrutiny of payments made whilst on maternity leave, particularly where other allowances over and above pay may also be due.

Further clarification

The obvious takeaway message from all the above is that employment law remains fast moving and sometimes complex, with each case presenting its own unique set of circumstances. If any of the above resonates, of if you have an employment law issue, please get in touch so we can advise you as to the best way to deal with it and the likely outcome.

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