Public and Commercial Services Union

Proofs at tribunal - guidance for representatives

Introduction

Disability discrimination law is some of the most complicated that representatives and members will come across.

There are many 'grey areas' in what is or might be considered discrimination under the DDA, far more so that with other equality laws.

It is the very nature of such cases that they tend to involve long narrative statements of what happened, often going back over a long period of time, with a general feeling from the aggrieved person that they have been 'unfairly treated' or 'discriminated against'.

Whilst understanding why the complaints under DDA tend to develop in this fashion, the problem can be that, all too often, these 'streams of consciousness' lack the specificity necessary to win over a tribunal.

What follows, therefore, is a summary of the points of evidence that any representative taking a DDA case before a Tribunal should ensure that they are in a position to prove.

It is all too possible to lose a case not on the facts of actually what happened, but because those facts are either not placed before the Tribunal panel or are presented to them in such a confused way that the tribunal members can fail to spot exactly what is being relayed.

Where appropriate, case references are given for key points of case law and possible sources of the full cases are listed at the end. There are also specific references to aspects of the DDA.

Disability

NB: any key questions of whether someone is protected by the definition of disability within the DDA should be measured with reference to the Equality and Human Rights Commissions' Guidance on matters to be taken into account in determining questions relating to the definition of disability' - available on the DRC website.

Where there is a diagnosis of cancer, MS or HIV the applicant is protected by the DDA from the date of diagnosis.

In order to prove disability under the Act, you must show:

The applicant has an impairment, which can be physical or mental
This has assumed less significance in recent case law - focus is more on the impact rather than a medical name.

But reps need to be aware of the need to prove to the tribunal's satisfaction that at least any symptoms or effects are linked to something that could be classed as an impairment under the law.

The impairment has an adverse effect on day-to-day activities (as listed in the Act) and that adverse effect is substantial - or would be (deduced effects) if ongoing medical or other treatment was discontinued.

The substantial adverse effect (not the impairment) is 'long term' - has or is likely to last 12 months of for the rest of the person's life, if likely to be less than 12 months.

Find out more about the DDA definition of disability.

Relevant case law and tips

Goodwin -v- Patent Office: (1999 EAT IRLR 4)

Established the 4 question approach for tribunals to the definition of disability.

Woodrup -v- London Borough of Southwark (2003 CA IRLR 111)

Indicated that tribunals should normally expect to hear clear expert medical evidence on any case where it relies on the issue of how a disabled person would be affected if treatment were disregarded.

'Expert' evidence can be from a relevant, non-medical expert - e.g. a psychologist in a learning difficulties case: Dunham -v- Ashford Windows (2005 EAT IRLR 6008)

Abadeh -v- British Telecommunications plc (2001 EAT IRLR 23)

It is not the task of a medical expert to tell a tribunal whether there is a substantial adverse effect - that is for the tribunal to decide from the evidence presented.

In cases where disability is disputed, it can be helpful at the Case Management Discussion (CMD) stage, to seek information from the Respondents on what aspects of the 4 points identified in the Goodwin case are under dispute - impairment; adverse effects; substantial; long term.

At Case Management Discussion, one can seek an order for an agreed report for both parties.

Medical experts are not the best people, necessarily, to offer evidence of adverse effect on day-to-day activities. Most tribunals will expect to hear from the applicant on these, supported perhaps by family, friends or work colleagues.

Discrimination

There are 3 key types of discrimination:

• Direct discrimination
• Failure to make adjustments
• Disability related discrimination

As well as harassment and victimisation. Tribunals will generally consider cases with multiple allegations in this order.

Direct Discrimination

To prove direct discrimination, you must show:

Applicant was treated less favourably than a real or hypothetical comparator. Comparator needs to be "a person not having that particular disability whose relevant circumstances including his abilities, are the same as, or not materially different from, those of the disabled person" (DDA 3A(5))

Relevant case law and tips

High Quality Lifestyles -v- Watts (2006 EAT IRLR 850)

The circumstances of the Claimant and of the comparator must be the same "or not materially different". One of the circumstances is the comparator's "abilities", but since this is prefaced by "including", it follows that more circumstances are relevant than simply the comparator's abilities.

Igen Ltd -v- Wong (2005 CA IRLR 258)

Shifting the burden of proof in discrimination cases: once the claimant has 'proved facts from which the Tribunal could conclude, in the absence of adequate explanation from the respondent, that the treatment was on the grounds of the claimant's disability, the burden of proof shifts to the respondent to show that the less favourable treatment was not on such grounds.

Project Management Institute -v- Latif (2007 EAT Case No. 0028/07)

Outlines how the rules on shifting burden of proof work in relate to reasonable adjustment cases - in that some evidence of a possible adjustment would have to be identified. This is a complex judgement, as it is not necessary to engage the shifting of the burden of proof in order to be successful and, as such, adjustments might only be identified in the course of a tribunal hearing.

Failure to make adjustments

To prove a failure to make reasonable adjustments, you must show:

There is at least one 'provision, criterion or practice' and/or 'physical feature of premises' that places the applicant at a substantial disadvantage compared with someone who is not disabled.

Unlike for direct discrimination, your comparator (real or hypothetical) does not have to have the same abilities etc. as the applicant.

The employer knows, or could reasonably be expected to know, that the person has a disability and is likely to be placed at a substantial disadvantage (DDA 4A(3)).

The employer has failed to take all steps that 'it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice or feature' causing substantial disadvantage. (DDA 4A(1)).

Relevant case law and tips

Archibald -v- Fife Council (2004 HoL IRLR 651): established many key points of the duty to make reasonable adjustments.

Archibald -v- Fife Council (2004 HoL IRLR 651): Duty may require employer to treat a disabled person more favourably - this necessarily entails a measure of positive discrimination.

Smith -v- Churchills Stairlifts plc (2006 CoS IRLR 41): Comparator readily identified by reference to the disadvantage caused by the relevant arrangements.

Smith -v- Churchills Stairlifts plc (2006 CoS IRLR 41): The test of the duty is an objective one.

Tarbuck -v- Sainsbury's Supermarkets Ltd (2006 EAT IRLR 664) There is NO absolute duty within the reasonable adjustment duty to 'consult' the disabled person.

Royal Liverpool Children's NHS Trust -v- Dunsby (2006 EAT IRLR 351) An employer is entitled to take into account sick leave relating to disability when considering actions for poor attendance.

Environment Agency -v- Rowan (EAT 2007)

This case outlines the proofs necessary to show that the duty to make adjustments has been triggered.

Find out more about reasonable adjustments

Disability related discrimination

To prove disability related discrimination, you need to show:

The employer has treated the applicant less favourably for a reason relating to the disability than they have treated (or would treat) the comparator.

The comparator is 'someone to whom the 'reason relating to disability' does not apply. Does not have to have 'same abilities'. 

The employer cannot justify the less favourable treatment. Any justification argument must be for reasons that are material to the case and substantial.

If the employer was under a duty to make reasonable adjustments, which they have failed to address, would the treatment still be justifiable, even if the adjustments had been made?

Whether the issue amounts to direct discrimination should already have been decided.

Relevant case law and tips

Martin -v- Lewisham BC (HoL 2008) overturned the Clark/Novacold approach to determining the correct comparator.  This is now a very complex matter and should be the subject of early legal advice.

Jones -v- Post Office (2001 CA IRLR 384) Employment tribunals must judge justification in a similar way to the 'range of reasonable responses' approach used for unfair dismissal cases.

Expanded in Williams -v- J Walter Thompson Group (2005 CA IRLR 376) BUT:

See also O'Hanlon -v- Commissioners for HM Revenue & Customs (2007 CA): Sedley LJ paragraph 98 of judgement - "In particular I am troubled by the conclusion that justification is a matter for the employer subject only to a Wednesbury-type test".

Rothwell -v- Pelikan Hardcopy Scotland Ltd (2006 EAT IRLR 24) Tribunal cannot find less favourable treatment to be justified unless any adjustments that it would have been reasonable for the employer to have carried out were done.

Victimisation

In order to prove victimisation, the following is required:

No need to show disability.

That the claimant has done a protected act, or it is clear the respondent believed that such an act was intended or suspected.

The claimant been treated less favourably by respondent than he has or would treat someone whose circumstances are the same, except for the issue of the protected act.

That the protected act was not made falsely and not in good faith.

Igen Ltd -v- Wong (2005 CA IRLR 258) Shifting the burden of proof: once the claimant has 'proved facts from which the Tribunal could conclude, in the absence of adequate explanation from the respondent, that the treatment was on the grounds of the claimant's protected act, the burden of proof shifts to the respondent to show that the less favourable treatment was not on such grounds.

Harassment

In order to prove harassment, you need to show:

• There has been conduct which was unwanted by the claimant.  That the unwanted conduct was 'for a reason which relates to the disabled person's disability'? (DDA 3B) (burden of proof issues can also apply).
• The unwanted conduct had the 'purpose or effect' of either
  Violating the claimant's dignity
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for the claimant

The respondent cannot show that 'having regard to all the circumstances', and taking into account the perception of the disabled person, the conduct should not reasonably be considered to have that effect.

General Tips and hints

Ensure that the claim makes clear what the claimant is seeking as a remedy - can be any or all of: declaration; recommendations; compensation; interest.

Bring to Tribunal's attention as early as possible in Case Management Discussions, any needs that the claimant may have for a hearing - medical evidence of such need may be asked for.
If evidence of a highly personal nature will be revealed in Tribunal, consider applying for a Rule 50 restricted reporting order.

Vento -v- Chief Constable of West Yorkshire Police (2003 CA IRLR 102) outlines the bands for Injury to Feelings awards. These will need to generally increase with the passage of time.

Sheriff -v- Kline Tugs Ltd (1999 CA IRLR 481): personal injury type damages can be recovered as part of an employment tribunal claim and an ET case will preclude separate action for PI compensation.

Accessing Case Law precedents

Previous decisions in Employment Tribunals have no force in setting a precedent that another Employment Tribunal  must follow, though some will take them as 'information'.

Employment Appeal Tribunal judgements do set precedent for Employment Tribunals . Recent EAT decisions can be found on the EAT database

House of Lords judgements can be found on the Parliament website.

IRLR numbers refer to Industrial Relations Law Reports.

PCS Information Service can deliver electronic copies of any case with IRLR number and reference.

Contact the Information Service 020 7801 2650 or email: Quentin@pcs.org.uk