Tuesday 1st September 2020
Disability Discrimination: Was the Disability Discrimination or Disability Discrimination?
In Robinson versus Department for Work and Pensions  EWCA Civ 859, the Court of Appeal has provided helpful guidance on the test to determine disability claims “due to a disability”.
Ms. Robinson worked as an administrator for the Department of Labor and Pensions (DWP). She was visually impaired and it was accepted that she was disabled under UK Anti-Discrimination Act. Because of her disability, she was unable to use the software necessary to do her job. The DWP tried to make adjustments but was unable to. Ms. Robinson made two complaints about the way DWP treated her. At that point, DWP transferred her to a paper-based role in another department. Ms. Robinson filed a lawsuit with the Employment Tribunal, including for disability discrimination.
The appeals court dismissed Ms. Robinson’s claim for disability based on discrimination, ruling that the offending treatment was not caused or given due to the fact that she was disabled or the symptoms of her disability. The Court ruled that it was insufficient for Ms. Robinson to show that she would not have received the treatment complained of in the absence of her disability. Instead, the Court found that the alleged discriminator’s motivation was relevant and that, in the case of claims for direct discrimination and discrimination on the basis of disability, the labor courts should examine whether the disputed treatment was due to the disability.
TUPE: Validity of advantageous contractual deviations
In Ferguson et al. V. Astrea Asset Management Ltd UKEAT / 0139/19 / JOJ, the Employment Appeal Tribunal (EAT) examined whether contractual changes to the terms and conditions of employment of employees were made prior to a change in service provision in the context of the transfer of companies (employment protection) The 2006 regulations (TUPE) could apply if they benefit employees.
The applicants were both officers and directors of Lancer Property Asset Management Ltd (Lancer). Prior to a change in how TUPE provided their service, which transferred their employment to Astrea Asset Management Ltd (Astrea), they changed their own employment contracts to include guaranteed bonuses and generous severance payments. The intent behind these variations was that Astrea would be bound by the extended conditions after the transfer. However, when Astrea discovered the discrepancies, he dismissed the applicants for gross misconduct. The applicants made claims against Astrea, including for severance payments under the various employment contracts.
The Labor Court ruled that the changes under TUPE were void as the only or main reason for them was the transfer of TUPE. The applicants appealed to the EAT, arguing that the contractual changes should not be invalid as they were beneficial to the applicants. In EAT’s view, TUPE’s restrictions on contractual changes extend to all changes, not just those that are detrimental to employees. The changes the applicants made to their own employment contracts were therefore void.
It is unclear whether the EAT’s decision would have been different if the applicants had not been involved in changing their contracts. In any event, however, employers should ensure that adequate protection is included in any outsourcing contract to cover as much as possible employment liability due to a change in service delivery.
Unfair Discharge: Can a Discharge Ever Be Fair Without a Trial?
In the Gallacher v Abellio Scotrail Limited UKEATS / 0027/19 / SS case, the EAT was considering a complaint as to whether a dismissal without trial was warranted.
Ms. Gallacher, a senior executive at Abellio Scotrail Limited (Abellio), was dismissed during an evaluation interview with no fair trial, warning, or appeal. Both Ms. Gallacher and her supervisor admitted that there was an irreversible breakdown in their relationship, and Ms. Gallacher was not interested in mending the relationship. In these circumstances, Abellio did not believe that any trial could serve any useful purpose and make the situation worse. Ms. Gallacher filed a lawsuit against Abellio, including for unjustified dismissal.
The EAT found the dismissal fair. The dismissal was due to the loss of trust between the parties and was within the range of reasonable responses Abellio was allowed to receive in all circumstances. However, the EAT noted that cases where an employer can forego a procedure because it reasonably believes that it would be pointless to follow a procedure are extremely rare and that cases where no procedure has been followed always subject to additional examination by the labor courts.
While employers will no doubt welcome this decision, it should be noted that it was very factual. It was also significant that the dismissal was due to a lack of mutual trust between the parties rather than disciplinary issues. In that case, the dismissal would almost certainly have been unfair if disciplinary proceedings had not been followed.
© 2020 Faegre Drinker Biddle & Reath LLP. All rights reserved.National Law Review, Volume X, Number 245
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