Expert Witness Journal Dec 24 - Journal - Page 40
disability itself and the ET did not make any findings
in relation to Mrs Desmond making stereotypical assumptions as to the Claimant’s future attendance
record.
that the termination of the claimant’s engagement was
a proportionate, in the sense of being appropriate and
reasonably necessary, means of achieving the asserted
legitimate aim.”
17. The EAT therefore set aside the ET’s finding on
direct discrimination [19].
21. The EAT found that the ET had been entitled to
find that the Respondent’s justification for dismissal
(the efficient management of the service) came up
short. The EAT therefore upheld the ET’s finding on
the s. 15 EqA complaint.
Ground 2 – discrimination arising in consequence
(s. 15 EqA)
18. On Ground 2, the Respondent’s challenge was to
the ET’s treatment of its justification defence (i.e., the
efficient management of the service). HHJ Tayler
stated that the burden was firmly on the Respondent
to establish the justification for dismissal and the ET
was “required objectively to assess the material provided by the
respondent to decide whether justification was established
applying “critical scrutiny”” [24].
Take aways
22. South Gloucestershire Council v Ms Hundal is an
important case for claimants and respondents alike.
Representatives acting on behalf of claimants should
carefully consider whether unfavourable treatment for
disability-related absences is more persuasively
pleaded under s. 15 EqA, where it does not appear
that the respondent has made stereotypical assumptions about a claimant’s future absences based on their
disability and is in fact motivated by the absences
themselves.
19. The EAT found that the Respondent’s justification, i.e., that one of the three agency staff members
had to be dismissed to make way for the new permanent staff member, and that should be the Claimant
given her attendance record, was flawed. Firstly, the
Respondent had not considered one of the agency
member’s attendance records at all. Secondly, the ET
doubted whether the Respondent had in fact applied
the legitimate aim of efficient management of the service, as Mrs Desmond referred to terminating “the
Claimant’s contract because the role was no longer available”
[26]. Even if this aim had been applied, the ET found
that it did not justify dismissal. The EAT found that, in
reaching this conclusion, the ET was entitled to
consider:
23. Equally, the EAT’s clarification on the relevance of
a FMRAs to s. 15 EqA claims is a matter that those representing respondents will want to consider. In particular, given that a ss. 20-21 claim does not need to be
brought in its own right before it becomes relevant to
the justification defence under s. 15(1)(b), there is a
degree of uncertainty as to whether a claimant needs
to plead the relevance of a FMRAs as part of his or her
stated case, or whether such an argument could be deployed for the first time in submissions. Respondents
will want to consider all eventualities, including their
response to any assertion that they could have made
reasonable adjustments, when formulating their
justification defence.
a. The quality of the Claimant’s work;
b. The assistance that might help the Claimant achieve
better attendance;
This document is not intended to constitute and
should not be used as a substitute for legal advice on
any specific matter. No liability for the accuracy of the
content of this document, or the consequences of relying on it, is assumed by the author. If you seek further information, please contact the 3PB clerking
team.
c. The ET was also entitled to have regard to the possibility that occupational health might assist (which the
Respondent had not considered because the Claimant
was an agency staff member).
20. In addition, the EAT clarified the interrelationship
between justification under s. 15(1)(b) EqA and a
FMRAs under ss. 20-21 EqA. HHJ Tayler stated that
[26]:
9 October 2024
“If an Employment Tribunal has found that, at the
time of the asserted discriminatory treatment, the employer failed to make a reasonable adjustment, justification generally cannot be made out. If a failure to
make a reasonable adjustment has been asserted and
the complaint has failed, the failure to make the specific adjustment is highly unlikely to be relevant to the
analysis of justification. However, it does not follow
that a complaint of failure to make reasonable adjustments must have been made out for the possibility of
an adjustment to be relevant to the assessment of justification. A claim of failure to make reasonable adjustments might be out of time, but the possibility of
the adjustment being made might still be relevant to
justification … the possibility of steps to assist the
claimant improve her attendance is relevant to the
question of whether the respondent has established
EXPERT WITNESS JOURNAL
Robin Pickard
3PB Barristers
020 7583 8055
robin.pickard@3pb.co.uk 3pb.co.uk
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DECEMBER 2024
