REWARD
ET’s finding that a claimant was not disabled was wrong In the case of Morris v Lauren Richards, the ET needed to find that the claimant was disabled for her claim of discrimination to proceed. It did not. Therefore, the Employment Appeal Tribunal (EAT) had to consider whether the original decision should stand, by deciding whether the condition in question was ‘long term’. The claimant had previously been diagnosed with premature menopause, for which she received counselling. Anxiety related to her employment began to impact the claimant a few months prior to her dismissal on the grounds of performance. The claimant raised a claim for unfair dismissal, which was rejected due to the claimant’s length of service. They also alleged that the respondent had placed an unreasonable workload and responsibilities on them, which was to the detriment of their mental health. Further, they alleged no reasonable adjustments were implemented on their return to work. The ET identified that the claimant suffered from an impairment, and that this began around May or June 2019, when the claimant began to feel overwhelmed at work and suffered a loss of confidence. This impairment, it was found, had a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities, and continued to do so at the point the claimant was dismissed from employment in September 2019. For a condition to be a disability under the Equality Act, it must also be long-term. The Act sets out that an impairment is long-term if it has lasted for at least 12 months; is likely to last for at least 12 months or is likely to last for the rest of the life of the person affected. The ET held that the impairment wasn’t long-term. This was based on their finding that the anxiety was a result of issues at work, and there was nothing to indicate it would likely persist once she had left the employment. She had been at that job for three months. The claimant appealed to the EAT and the decision was overturned. The EAT found that the ET had erred in law in the reasoning that led to the decision that the claimant did not suffer from a disability, and that there was insufficient evidence before the original ET to decide on this matter. As a result, the
the understanding that the claimant had refused to give consent for the assessment. However, the claimant asserted he hadn’t refused but that the call had caused him to be upset because the line went dead on several occasions and the occupational health representative hadn’t called him back. The manager then asked what activities the claimant was completing at home. He showed upset at this question again and told the manager he was off sick with stress and this questioning was making him feel worse. On the race claim, the ET found that the claimant hadn’t suffered harassment. The colleague with whom the claimant was speaking had previously had a stroke and gave evidence that he continued to have difficulties in processing and filtering information when people talk quickly. He also said that the claimant was prone to speaking quickly when he became irate. The ET found that the reason for the comment was because he was speaking quickly and not because of his accent. The ET did, however, find that the disability harassment claim was well founded because both lines of questioning – the reason for the absence and the activities the claimant was completing at home – violated the claimant’s dignity and created a hostile, humiliating or offensive environment for him. The manager said he was simply following protocol in these situations, which was to confirm the reason for the absence with the employee and enquire whether there were any work activities that he could do at home. The ET found that this wasn’t what had happened, and that the question regarding activities at home was a statement redolent of distrust and implied the claimant was fit to carry out activities notwithstanding his absence from work through illness.
EAT referred the matter back to the ET for a re-hearing on the matter of the long-term effect of the impairment. The EAT accepted that there’s no rule of law that it is necessary to have medical evidence in any given case and it’s a matter of factual assessment for the tribunal on the evidence before it as to whether a particular effect is likely to persist. Furthermore, the EAT stated that the ET would have to carry out an assessment of the position in September 2019, and whether at that time the impairment was likely to have a long-term effect, if the circumstances after the alleged discrimination hadn’t taken place. It should have focussed, the EAT said, on whether the anxiety could well have continued to a sufficient extent to be covered by the Act regardless of the leaving the job. Only then could the ET turn to the question of whether a discriminatory act had taken place.
“For a condition to be a disability under the Equality Act, it must also be long-term”
‘Clumsy’ comments to employee on sick leave were harassment
In the case of McCalam v Royal Mail, the ET had to determine whether an employee had been subjected to race and disability harassment due to comments made by different members of staff. The claimant was Scottish and claimed he’d been subjected to race discrimination when a colleague told him several times, during a conversation, that he couldn’t understand him and screwed up his face. Separately, the claimant claimed disability harassment because of questions he was asked during a conversation about a perceived failure to consent to an occupational health assessment. The employee was off sick and had submitted a fit note which stated stress at work as the reason for absence. A manager telephoned the claimant on
“An act of harassment does not need to be deliberate”
The manager’s argument that his words were just ‘clumsy’ couldn’t affect the finding because, as the ET said, an act of harassment does not need to be deliberate. n
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| Professional in Payroll, Pensions and Reward |
Issue 92 | July - August 2023
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