Tribunal’s approach to Disability

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What is necessary to show a disability and how far does a tribunal have to go to assist a Claimant?

In Joseph v Brighton & Sussex University Hospitals NHS Trust Mr Joseph (who was not legally represented) failed to adduce evidence to cover all of the ingredients for a disability under Section 6 Equality Act, which are:

  • a physical or mental impairment
  • that has a substantial adverse effect on ability to undertake normal day to day activities, and
  • which is ‘long term’ (meaning that it has lasted or is likely to last more than a year)
  • However, documents in a 580 page bundle that was before the tribunal were relevant to these questions, but the tribunal did not consider them. Mr Joseph complained the tribunal should have been more proactive and inquired further by looking at these documents.

    The Employment Appeal Tribunal disagreed, saying that the tribunal’s duty to assist an unrepresented Claimant did not require it to go this far.

Jewish Sabbath and Religious Discrimination

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A Manchester Tribunal awarded £16,000 in damages to an unsuccessful job applicant who was rejected because she could not work on Saturdays

The Jewish sabbath (‘shabbat’) prohibits work from sunset on Friday to sunset on Saturday, however, the Respondent is a travel agency and wanted an employee who could be more flexible with hours.

Employers who operate practices that disadvantage applicants or employees because of their religion or belief face indirect discrimination claims, however, this is not the end of the story.

Often indirect discrimination can be justified and if individual cases are handed sensibly and carefully, this kind of liability (and the associated negative publicity) can be avoided.

Requirements of Fair Consultation

What are the basic requirements of a fair consultation process?

In R v London Borough of Haringey the Supreme Court endorsed the four ‘Gunning’ principles as the essential ingredients of a fair consultation:

  • consultation must take place when the proposal is still at a formative stage
  • sufficient reasons for the proposal must be put forward to allow for intelligent consideration and response
  • adequate time must be given for consideration and response
  • responses must be conscientiously taken into account

These are important concepts for employers to understand. They underpin redundancy proposals, re-structures, transfers, contractual changes and are central to the management process when dealing with changes in working practices and procedures.