Did the Suspension of an Employee Due to an Effect Caused by Their Disability Amount to Harassment and Direct Discrimination?

The Legal Framework  

Under the Equality Act (EqA) 2010, there are different six types of disability discrimination.

• Harassment: where unwanted conduct related to an individual's disability has the effect of violating that individual's dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for that individual.

In deciding whether conduct amounts to harassment, the Tribunal must consider not only whether the conduct made the individual feel violated or humiliated etc. but also whether it is reasonable for the individual to feel this way.

• Direct discrimination: where an individual is treated less favourably compared to others because of their disability.
•  Indirect discrimination : where a policy, criterion or practice (PCP) applies equally to all employees but puts people who are disabled at a particular disadvantage and the PCP cannot be objectively justified.
• Victimisation: where an individual is treated unfairly because they have supported or made a complaint about disability discrimination.
• Discrimination arising from disability: where an individual is treated unfavourably because of something arising in consequence of their disability and the treatment cannot be objectively justified.
• Failure to make reasonable adjustments: where an employer has failed to comply with their duty to make reasonable adjustments for a disabled employee or job applicant.

Background

Mr Ahmed is a qualified 'Teach First' teacher who was offered a placement to teach at one of Cardinal Hume's schools (the School). He has dyspraxia which causes pain and significant difficulties with writing. When the school became aware of these issues at the outset of his placement it met with Mr Ahmed to address some concerns they had about the effect his dyspraxia would have on his role. and in particular concerns about how he would cope given the problems he had with writing. During these meetings, remarks were made which Mr Ahmed found hostile and dismissive. The School subsequently suspended Mr Ahmed pending investigation as to how their concerns could be resolved. Mr Ahmed raised a grievance and resigned on the same day and subsequently brought multiple claims including claims for discrimination arising from disability, harassment and direct discrimination.

Employment Tribunal (ET)

The ET dismissed all of Mr Ahmed's claims holding that, although the remarks made were unwanted, taking into account the circumstances it was not reasonable for Mr Ahmed to regard these remarks, and the subsequent suspension, as amounting to harassment.

The ET also concluded that Mr Ahmed was suspended because of his difficulties with writing and not because of his dyspraxia, and as such this did not amount to direct discrimination. Although they noted that this could amount to discrimination arising from disability, they were satisfied that the school had objectively justified this decision. In particular, it considered that the school's decision was in pursuance of the legitimate aim of protecting its pupils, and Mr Ahmed, from the possibility of him not being able to cope alone in the classroom, with a relatively demanding timetable, in his first formal teaching role. It noted that the school had a primary responsibility for the education of its pupils and was satisfied that suspending Mr Ahmed for a limited period of time in order to research and investigate further and, if necessary, put support in place, was a proportionate means of achieving that aim.

Mr Ahmed appealed to the EAT on two grounds: firstly that the ET had failed to take the correct approach to assessing harassment; and secondly that the ET had erred in relation to his direct discrimination claim by not giving effect to its own finding that the reason the school had suspended him was because of his difficulties with writing , which was his disability.

Employment Appeal Tribunal (EAT)

Both appeals were dismissed. The EAT concluded that the assessment of whether an individual can reasonably feel harassed by conduct is the first consideration in a harassment claim, and if it is not reasonable for the individual to regard the unwanted conduct as having the necessary effect then the other factors need not be considered.

Furthermore, it agreed with the ET that Mr Ahmed's suspension resulted from his difficulties with writing and that this was a consequence of his disability, and not the disability itself.

Summary

This case reaffirms the significance of the question of reasonableness in harassment claims. Although there may be cases where conduct is unwanted and upsets the recipient, if it is not reasonable to regard the conduct as having the necessary effect, then it will not amount to harassment. It also serves as a useful reminder of the importance of defining a disability correctly. Since discrimination arising from disability is capable of objective justification, whilst direct discrimination is not, a distinction needs to be drawn between the physical or mental impairment, and the adverse effect that the impairment has.

For more information please contact Lorna Scully in our Employment Law team on 0121 227 3719 or complete the form below.