If you are a disabled employee, an employment lawyer or a trade union official, or you manage disabled employees, you should take careful note of the recent Employment Appeal Tribunal (EAT) case of Baldwin v Cleves School and others.
By way of explanation, the EAT hears appeals against Employment Tribunal decisions where it is alleged that the Tribunal has erred in law. It could be described as a ‘proper court’, whose decisions are binding unless overturned by the Court of Appeal. Hearings are chaired by a High Court or circuit Judge.
In this case, the EAT found that where an employer has been found liable for disability discrimination, employees who have also been accused of discriminatory conduct will be found liable, unless they can prove that they have been told by their employers that their actions are lawful and they reasonably believe that to be true.
What It Means for Managers of Disabled Staff
Many of our members will be responsible for managing staff who are considered disabled under the Equality Act 2010. This case is a sobering reminder that individuals can end up facing disability discrimination claims and that extreme caution needs to be exercised when dealing with disabled staff, to ensure that managers do not engage in discriminatory conduct. If members are being directed by or acting on the instruction of HR or their line managers, its important they establish the legality of what they’re being asked to do before acting and get it confirmed in writing.
If that confirmation is not forthcoming or you have any doubt whatsoever and you are a BTU member, do not act. Call the Union’s Advice Team straight away because you need independent advice on the risk of substantial damages (which you would have to pay) being awarded against you personally.
“Go On, Do It!”
I’ve referred in previous newsletters to managers being pushed by their superiors or HR to do things that all concerned know to be unethical.
The people behind these acts operate in the shadows and are rarely if ever identified. Now we all know that the person who dictates HR policy is Sharon Doherty and obviously she sets the parameters within which HR business partners and managers work. Much less obvious is which actual decisions are made at her level or just below or indeed are driven outside HR by very senior line management.
Well we are going to find out in future, because BTU intends to drive towards clear personal accountability and liability for those senior managers who, in reality, drive disability discrimination.
Civil Servants who are asked to do things concerning expenditure that they believe to be improper are entitled to seek formal, written ministerial directions which, in effect, transfer the responsibility for the actions concerned on to the shoulders of ministers i.e. elected politicians.
Managers in every company need to think in that way if they are at all concerned about being implicated in an act of disability discrimination. They should then seek written confirmation or clarification of what they are being told to do.
“It Was An Innocent Mistake!”
No one working in HR or employment law can possibly claim that the law around disability is easy and there is always the possibility that someone will do something that 70% of the population might regard as reasonable, but still be found to have acted unlawfully. So, there is scope for innocent mistakes.
However, we all know what is and is not ethically proper and where there is clear cut unethical behaviour, cases will definitely proceed to the Employment Tribunal. Guilty managers are now going to find themselves named personally as well as their employer.
To help out managers who might find themselves liable we will point out in writing, as we do already, the danger of an act of discrimination. This will have two effects:
- It will remove any argument that a manager was unaware of the potential for discrimination.
- It will provide every justification for all concerned on the Bank side to seek confirmation or clarification.
An Example
A practical example of what can happen in a discrimination case is the following.
A member of staff suffers some sort of breakdown episode and asks to work from home to help him manage the effects of his disability. The request is supported by advice from the employer’s own occupational health advisers. However, line management or HR or both decide that they want the employee out of the business and set out to ratchet up the pressure so the employee breaks. One of the ‘pressure points’ is the refusal to allow home working when all concerned know there is no alternative job within reasonable daily travelling distance. The aim here is to leave the employee unable to work, withering on the vine, until he can be sacked for sickness absence.
Clever management? Not quite, because the employer itself is clearly open to the charge of disability discrimination by virtue of it having failed to make a ‘reasonable workplace adjustment’ to allow the disabled employee to work as normally as possible.
And now, the way is open to name names and cite individual managers in proceedings with a view to holding them personally liable for the discrimination. Anyone involved in cases of the sort I have outlined above should now start to think carefully about their personal positions!
To quote Dr Johnson, “When a man knows he is to be hanged in a fortnight, it concentrates his mind wonderfully.”
The Implications For Disabled Employees
The case serves as a reminder that disabled employees who suffer from disability discrimination at work can not only make claims against their employers; they can bring claims against individual employees who have engaged in discriminatory conduct too. The provision gives disabled employees important protection against not just those who act as the face of discriminatory action against disabled staff but those who construct unlawful strategies and drive them forward.