Mon 01 Jul 2019

What's your Employment Claim - The Importance of Identifying the Correct Legal Grounds

The recently reported Employment Appeal Tribunal (EAT) case of Ahmed v The Cardinal Hume Academies UKEAT/0196/18/RN highlighted the vital importance of fitting the facts of a case to the correct legal ground for a claim.

Mr Ahmed had a condition known as dyspraxia. This causes him to have difficulties with handwriting.  He suffered from pain when handwriting and could only write for a few minutes at a time. He was held to be a disabled person in terms of section 6 the Equality Act 2010 due to physical impairment.  He was employed as a teacher at the Respondent’s School.  At a meeting on 7 September 2016, the Headteacher, expressed surprise at his difficulty with writing and on 8 September 2016, the Claimant was told that he would be suspended and required to stay at home until the issues raised were considered further. The Claimant raised a grievance and subsequently resigned claiming that he had been the victim of direct disability discrimination.  The Employment Tribunal (ET) dismissed his claims and the Claimant appealed, contending that the Tribunal had erred in relation to his claim of direct disability discrimination in failing to give effect to its own finding that the reason for the Claimant’s suspension was his disability, namely his difficulty in handwriting.

The EAT held that the Tribunal had not misapplied its own findings. Its conclusion was that he had been suspended because of his difficulties with handwriting. That was a finding that treatment was because of the adverse effect of an impairment or of something arising from disability; it was not a finding that the treatment was because of the disability – whether dyspraxia or some other unspecified physical or mental impairment - itself.

In disability cases, section 13 of the Equality Act 2010 requires a Tribunal to be satisfied that, because of a protected characteristic, a person (A)  treats another person (B) less favourably than A treats or would treat others, ie. in Mr Ahmed's case, the School treating Mr Ahmed this way because he had dyspraxia.

Section 15 of the Equality Act 2010 requires a Tribunal to be satisfied that A person (A) discriminated against a disabled person (B) when A treats B unfavourably because of something arising in consequence of B's disability, ie. in Mr Ahmed's case, the School treating Mr Ahmed this way because he had difficulty writing.

In Ahmed the EAT is in effect acknowledging that if the Claimant had brought a section 15 claim and not a section 13 claim the ET would not have been in a position to dismiss it on the reasoning they gave for dismissing the section 13 claim.

At Morton Fraser LLP we often hear from employees who have genuine grievances about the way they have been treated by their employers. However, it is not enough to go to an Employment Tribunal and cite a list of incidents which the employee says amount to unfair treatment.  A vitally important part of our job, and one we place particular focus on from the outset, is to take the facts of our clients' cases and identify the correct statutory basis for the claim. As Ahmed has shown, a failure to get this right can result in what may have been a perfectly valid claim of disability discrimination failing simply because it was pursued under the wrong section of the Act. Since these types of claim can result in uncapped levels of damages, getting it wrong could be very costly.

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