Archive for November, 2016

Race discrimination: Nigerian national: employer’s failure to understand documentation


Home Office checks of Nigerian employee

Case  Olatinwo v Qualitycourse Ltd (2016) Eq Opp Rev 272:25, East London ET

Facts O, a man of Nigerian nationality, was employed by Q as a warehouse picker. A manager instigated a Home Office check on O, including whether he had a residence permit, based on incorrect information from O’s line manager and the employer’s compliance team. The Home Office was unable to confirm O’s status in the UK. O was told that he would have to leave his employment. He complained of race discrimination.

Decision      1. The complaint was dismissed.

  1. O had been treated less favourably not because he was a Nigerian national but because of the employer’s failure to understand his documents and to understand and apply the relevant guidance.

Disability discrimination: cancer and depression: £15,000 for injury to feelings



Case  Harris v John (2016) Eq Opp Rev 272:28, Bristol ET

Facts Ms H was disabled by reason of breast cancer and depression. Her employer went ahead with a grievance hearing with undue haste, followed by disciplinary proceedings at short notice. The ET found that this put Ms H at a substantial disadvantage. At the disciplinary hearing it was suggested that Ms H did not have cancer and that her double mastectomy had been elective. This was harassment.

Award: £15,000 for injury to feelings. The comment about Ms Hs cancer had been egregious and intentional and was insult added to injury.

Fidel Castro and social and economic human rights

Fidel Castro: revolutionary hero or tyrannical dictator

It is clear that Castro was a supreme guerrilla fighter who led the overthrow of the fascist Batista regime in Cuba in 1959. The victory of the revolutionaries was enthusiastically welcomed by most Cubans. It is also generally accepted that Cuba’s health and education system is superior to that of many developed countries. Castro’s regime has been criticised for human rights violations. This illustrates the contradiction between individual human rights and social and economic rights. We have consistently argued for the extension of human rights law in the social and economic field, for example the right to housing, health, food and education, which is ignored by current UK human rights legislation. Whether this contradiction can ever be resolved remains to be seen – perhaps the 1996 constitution of South Africa, which guarantees individual, social and economic rights, comes closest. As Albie Sachs commented, individual human rights can guarantee to people dying of hunger the inalienable right to use their last breath freely to curse the government.

Disability discrimination: dyslexia: failure to understand needs of employee


Failure to understand needs of dyslexic employee

Case  Sangha v Chemicare UK Ltd (2016) Eq Opp Rev 272:26, Birmingham ET

Facts S was employed as a trainee pharmacist. He is dyslexic. He complained that he resigned because of his treatment by his supervisor who had told him to work more quickly. The supervisor was unable to adapt his teaching techniques to someone who was dyslexic and told S that he should look for other career options. S complained of direct disability discrimination, disability arising from discrimination and failure to make reasonable adjustments.

Decision      1. The complaints were upheld.

  1. S had been criticised for working too slowly without recognising that his slower pace of work arose as a consequence of his disability.
  2. In the absence of any constructive dialogue between the employee and his supervisor, there was no discussion of possible adjustments. There was a provision, criterion or practice which required people in S’s position to process prescriptions and dispense medicine at a particular speed. This put O at a substantial disadvantage.

Age discrimination: no true redundancy


No true redundancy

Case  Demosthenous v Sosa Factory Ltd (2016) Eq Opp Rev 272:24, Watford ET

Facts D was dismissed for redundancy at the age of 67. She complained of age discrimination.

Decision      1. In the absence of any evidence of redundancy, the burden of proof on the claim passed to the employer.

  1. The claim succeeded.
  2. No proper procedure had been followed by the employer.
  3. In relation to comparators, two employees aged 58 and 60 were proper comparators despite the narrow difference in age, because D’s age group was those entitled to draw state pension whereas the comparators were not.
  4. Injury to feelings award: one off act: serious matter with substantial effects: £5000 plus £552 interest plus reimbursement of tribunal fees.

Employment tribunal restricted reporting order: right to private life


Restricted reporting order

Right to private life

Case  Fallows and others v News Group Newspapers Ltd [2016] ICR 801, EAT

Facts F complained of unfair dismissal and sex discrimination, including sexual misconduct. The employer applied for a restricted reporting and anonymity order. This was refused and the employer appealed. The respondent newspaper group intervened because it wished to report the proceedings without restriction. The employment judge made an order restricting reporting pending the appeal. The claimant’s claims were settled and withdrawn. The newspaper group argued that the restricted reporting order no longer had effect. The employment judge revoked the order. The claimant and the employer appealed to the EAT.

Decision      1. The appeal was dismissed.

  1. Anyone with a legitimate interest was entitled to apply for the discharge of a restricted reporting order. There was no time limit for this.
  2. The question for the employment judge was whether there was a sufficient public interest in maintaining the open justice principle and right to freedom of expression to justify the resulting curtailment of the right to private and family life. The judge had been entitled to conclude that no privacy order was justified.

Disability discrimination: justification: police motorcyclist suffering from PTSD


Discrimination arising from disability


Case  Buchanan v Commissioner of Police of the Metropolis (2016) Morning Star, November 11, EAT

Facts B, a police motorcyclist, was seriously injured in a motorcycle accident when responding to an emergency call. He suffered PTSD and could not return to work. His employer initiated its Unsatisfactory Performance Procedure (UPP) which did not make any provision for disabled employees. Notices served on B required him to return to work, although his employer knew that he could not do so. B complained of discrimination arising from disability. The ET dismissed the complaint on the basis that the application of the UPP was a proportionate means of achieving a legitimate aim. B appealed to the EAT.

Decision      1. The appeal was allowed.

  1. The employer had to be able to justify the actual treatment of B and not just the underlying procedure used for implementing the treatment.

Employment tribunals: costs warning: new EAT case: Hussain v Nottinghamshire Healthcare NHS Trust



Risk warning

Case  Hussain v Nottinghamshire Healthcare NHS Trust (2016) Morning Star, October 28, EAT

Facts During the hearing of a claim by H, the tribunal judge warned him that the apparent weaknesses in his case were such that a costs award might be made against him. After the case was adjourned, H lodged a complaint that the tribunal was biased. This was rejected. On the determination of the employer’s application for £100,000 costs, the tribunal noted that the employer had written to H three times pointing out the weaknesses in his claims and putting him on notice that it would seek costs against him. It awarded costs of 85 per cent of the total claimed. H appealed to the EAT.

Decision      1. Tribunals have to give guidance to parties as to how their case might be viewed and the risks they might be taking if they continue down a particular path.

  1. The tribunal had not made up its mind early on. It had simply warned H of the risks.
  2. The tribunal had not adequately explained why it had made an order for 85% of the costs. This point was remitted to the same tribunal.

Glasgow City Council: settlement agreement set aside for lack of capacity


Settlement agreement

Power to set aside

Case  Glasgow City Council v Dahhan (2016) Morning Star, November 18, EAT

Facts D’s claims of race discrimination were settled before they were heard. The claims were dismissed. D then informed the ET that he had lacked capacity to instruct his solicitor and to make decisions at the time the settlement was agreed. He asked for the ET judgment to be reconsidered. The ET set the judgment aside. The employer appealed to the EAT.

Decision      1. The appeal was dismissed.

  1. Tribunals have the power to ensure that purported settlement agreements are valid. They can set aside agreements involving an absence of consent by one of the parties because of misrepresentation, economic duress or mistake.
  2. This power includes the power to set aside an agreement on the ground of invalidity if one of the parties did not have the requisite capacity to enter into it at the time of signing.

Benefit fraud: cost compared with that of the Iraq War



Benefit fraud

From time to time, civil servants enforcing welfare benefit rules proudly announce that they have uncovered widespread fraud and that “welfare cheats” are to be prosecuted. These purges are welcomed and praised by sections of the mass media. The boast is that taxpayers have been saved huge amounts of money by the successful undercover surveillance and exposure of benefit cheats. Advertising campaigns urge the public to inform on welfare cheats.

The reality is that the sums of money saved and recovered are derisory in comparison, for example, with the following:

  • Widely-known and accepted, legal or semi-legal, tax avoidance and evasion schemes.
  • Money wasted by the state in many ways. For example ,in 2008 Joseph Stiglitz, former Chief Economist at the World Bank, and Linda Bilmes, a leading American economist, published The Three Trillion Dollar War: the true cost of the Iraq conflict. Their conclusion was that the total cost of the Iraq war to the US would be $3 trillion and the total cost to Britain would be £20 billion.

It has been commented that the bloodhounds who track down the benefit cheats should be let loose on the tax avoiders, the arms traders and those who have wasted unimaginable amounts of money on illegal wars.