Three cases in the last 12 months should be of particular interest to HR professionals. Two relate to bread and butter issues connected with disability discrimination. These should act as a warning to employers when advising line managers who are just trying to do their jobs among the thickets and snares of employment law. The third case poses a fundamental equal rights question, which reminds us that law is frequently the outcome of politics, and judges are often just politicians with wigs on.
Chief Constable of Norfolk v Coffey (Employment Appeal Tribunal)
This case was significant for outlawing any discrimination against people who are not actually disabled, but who are perceived to be disabled, or who employers think may become disabled in the future. Coffey is a police officer whose hearing ability did not reach the required standards in her own force. However, she was still able to work and had no limitation put on her duties. The crucial issue arose when Coffey applied for another position within Norfolk Police Service. The Service perceived that she may become disabled at some point in the future, and thus turned her down. However, the tribunal held that this was wrong, and the belief that she might at some future point become disabled amounted to direct discrimination.
Interestingly, the police are currently looking at retesting firearms officers in respect of colour blindness. One suggestion is that if firearms officers cannot see the red dot when it is projected onto targets because of colour blindness, this is an obvious risk. Hundreds of officers could potentially be taken off firearms duties.
City of York v Grosset (Court of Appeal)
This case is particularly notable as it settles any issues around Section 15 of the Equality Act and gives employees a very powerful protection from discrimination due to disability. As a background, Section 15 consists of two elements, one of which is unfavourable treatment (e.g. dismissal) because of a ‘something’ arising from disability.
Mr Grosset, a teacher at a school in York, was dismissed for showing an 18-rated film to 15 and 16-year-olds. Grosset has cystic fibrosis, and alleged that showing the film was a ‘lapse in judgement’, which came about because of a ‘high level of stress’ caused by his workload being too heavy and a punishing exercise regime, required because of his condition.
The Court of Appeal agreed with the employment tribunal in support of Mr Grosset. Importantly, this case shows an employer can be liable even when they don’t know that the ‘something’ leading to the dismissal – in this case, an error in judgement – has arisen from the disability.
If an employee can prove these two things, then the burden is firmly on the employer to prove objective justification, which is often a relatively high bar to pass. A classic instance involving Section 15 is where an employee is absent because of cancer. Ostensibly dismissed for the absences, Section 15 could mean the employee wins their case unless the employer can show objective justification.
‘Gay cake’ case to be heard at Supreme Court
Lastly, one to look out for later this year is the ‘gay cake’ case. Despite the frivolous title, this case concerns a deadly serious issue: the balancing of equal human rights. The Supreme Court has to decide whether the refusal by the owners of a bakery to bake a cake featuring an iced ‘support gay marriage’ slogan, was unlawful. The owners say that they were following their deeply held religious beliefs when refusing to do so. The customer asserts that their refusal amounts to discrimination on the grounds of sexual orientation. The case involves two equal rights, religious freedom and non-discrimination on the grounds of sexual orientation, but there can only be one winner. Judgment is expected later this year and, with legal costs for both sides nearing £400,000, that is one expensive cake.
Kevin McNerney is an employment law barrister at St John’s Buildings