Expert Witness Journal Dec 24 - Journal - Page 39
a. Mrs Desmond considered the Claimant to be a good
social worker but did not consider that the Claimant
was “exceptional”. Importantly, however, Mrs
Desmond had not suggested that either of the other
two locums were exceptional. Indeed one of the
locum’s performance was described as “satisfactory”.
The material difference with this locum was that they
had been employed by the Respondent for a number
of years.
Careswell had suggested some adjustments to manage the Claimant’s disability (such as amendments to
her working pattern), but these adjustments were not
ultimately taken into account. The ET therefore upheld the Claimant’s s. 15 EqA complaint, stating at
para 81 that:
“Terminating the Claimant’s agency placement
because of her sickness absences, without considering
what additional support could be provided to the
Claimant was not an appropriate and reasonably
necessary way to achieve the aim of the efficient
management of the service.”
b. The other locum started at a similar time to the
Claimant. There was no suggestion that they were an
exceptional social worker, only that they were more
“reliable” than the Claimant in terms of attendance.
The ET stated that the only difference between this
locum and the Claimant was that the Claimant had
had periods of absence due to her disability.
Before the EAT
14. The Respondent appealed on the following
grounds [12; 21]:
a. The Tribunal misdirected itself as to and/or misapplied ss. 13, 23 and 136 EqA 2010, and/or reached a
perverse conclusion, in finding direct disability discrimination when it found that the reason for the impugned treatment was solely the Claimant’s absences.
c. The ET found that the Respondent’s reason for
dismissing the Claimant was due to her sickness
absences.
11. The ET upheld the Claimant’s complaint in
relation to direct discrimination as the Claimant “was
treated worse than the comparator whose circumstances were
the same as the Claimant save for the Claimant’s disability”;
“[T]his less favourable treatment was because of the
Claimant’s disability” [11]. At para 69, the ET stated that:
b. The Tribunal misdirected itself in relation to, and/or
misapplied s. 15(1)(b) EqA 2010, and/or reached a
perverse conclusion in deciding that the termination
of the Claimant’s agency placement was not objectively
justified.
“Mrs Desmond decided to terminate the Claimant’s
contract because the Claimant was less reliable than
the comparator. This was a direct reference to her sickness absence record, which was due to her disability, of
which the Respondent was aware”.
Ground 1 – direct disability discrimination
(s. 13 EqA)
15. HHJ Tayler pithily summarises the distinction
between sections 13 and 15 in Bennett v MiTAC Europe Ltd [2022] IRLR 25 in the following terms:
12. In relation to the s. 15 EqA complaint (discrimination arising), the Respondent had pleaded that
any unfavourable treatment (the dismissal) which
arose in consequence of the Claimant’s disability (her
sickness absences) was a proportionate means of
achieving a legitimate aim. The Respondent pleaded
the following [2]:
“40. Because in the case of disability discrimination the
circumstances include a person’s abilities, when assessing a claim of direct disability discrimination it is
necessary to compare the treatment of the complainant with an actual or hypothetical person with
comparable abilities. Thus, if the consequence of a disability is a reduction in a person's ability to do a job
and that reduction in ability is the reason for adverse
treatment it will not be possible to make out a claim of
direct discrimination because the comparator would
have the same level of ability as the disabled person.
That is why s 15 EqA 2010 is necessary, which provides for discrimination because of something arising
in consequence of disability. However, if stereotypical
assumptions are made about the ability and/or likely
future ability of a disabled person this can amount to
direct disability discrimination: Chief Constable of Norfolk Constabulary v Coffey [2019] EWCA Civ 1061,
[2019] IRLR 805, [2020] ICR 145.”
“The termination of the Claimant’s placement, if unfavourable, was for the legitimate aim(s) of the efficient
management of the service, and was an appropriate
and reasonably necessary means of achieving that aim.
There was a new permanent employee arriving, and
the need for agency cover reduced correspondingly.
There were two other agency workers on the Westgate Team whose placements might have been terminated instead. One had been with the service for an
extended period, was a consistent worker and was
managing her cases with appropriate oversight and
support. She had a full caseload. The other had
joined around a similar time to the Claimant. There
were no issues of sickness and he had some court
work which Mr Careswell did not wish to reallocate
[emphasis added in the EAT’s judgment]”.
16. In the present case, HHJ Tayler (the appeal judge)
considered that the ET’s finding on direct discrimination, i.e., that the “decision to terminate the Claimant’s
contract as opposed to the second locum, was taken solely in relation to her sickness absences” conflated treatment because of the Claimant’s disability with a consequence of
the disability [18]. Applying a “but for” test, i.e., the
absences would not have arisen but for the Claimant’s
disability was inapt when considering the reason why
the Respondent had dismissed the Claimant [19]. The
absences could not be treated as a proxy for the
13. The ET found that the legitimate aim (the efficient
management of the service) was undermined by Mrs
Desmond’s witness statement, which said that the decision to terminate the Claimant’s contract was because
the role was no longer available (para 70 of the ET’s
judgment). The ET placed emphasis on the fact that
the Respondent had considered the Claimant to be
able to manage complex cases well. In addition, Mr
EXPERT WITNESS JOURNAL
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DECEMBER 2024
