Legal Steps for Blowing the Whistle at Work

Whistleblowing is the act of exposing wrongdoing within an organisation and is a courageous step that employees might take to uphold integrity and ethics in the workplace. Understanding whistleblowing law in the UK and knowing the right steps to take are crucial for anyone considering voicing their concerns about something that has happened, is happening or is going to happen in the future. 

In this post, we have explored the legal steps for blowing the whistle at work, offering essential whistleblowing advice to help you navigate the process correctly and effectively.

Protection from Whistleblowing Law in the UK

The Employment Rights Act 1996 (ERA 1996) plays a crucial role in safeguarding workers who blow the whistle in the UK. This legislation provides protection to ensure that employees can disclose information about wrongdoing without fear of retaliation. It stipulates that it is automatically unfair to dismiss an employee for making a protected disclosure. Additionally, it is unlawful to subject a worker to any detriment for making a disclosure. 

These provisions offer robust protection to employees who raise concerns about wrongdoing in their workplace and make what is legally termed as a ‘protected disclosure’. All UK workers are protected when making a protected disclosure from the moment they start their employment. Importantly, the worker disclosing information must have a reasonable belief that their disclosure is in the public interest to be protected by whistleblowing law in the UK. 

Step-by-Step Guide to Blowing the Whistle

Embarking on the journey of whistleblowing requires a clear understanding of the process and careful consideration at each step. Here is an overview of the whistleblowing process from an employee perspective, so you can blow the whistle correctly;  

Identify the Wrongdoing

The initial and most critical step in whistleblowing is to accurately pinpoint the wrongdoing. This could encompass a range of issues, from criminal offences, miscarriages of justice, health and safety violations, damage to the environment, failure to comply with legal obligations or deliberately concealing any wrongdoing. It is crucial to be specific about the nature of the wrongdoing to ensure that your disclosure is clear and a qualifying disclosure.

Know Your Rights and Protections

When considering whistleblowing, it is crucial to understand the legal protections available to you under the Employment Rights Act 1996. As mentioned above, this Act plays a key role in safeguarding employees who blow the whistle. It ensures that workers can disclose information without fear of adverse consequences. Under this Act, you are protected against dismissal and other forms of unfair treatment that may arise as a result of your whistleblowing.

This knowledge is essential as it empowers you to proceed with confidence, knowing that the law is on your side. The ERA 1996 offers a safety net, encouraging employees to speak out against wrongdoing without the risk of jeopardising their career or workplace relationships. However, it is important to approach whistleblowing with a clear understanding of the correct procedures and channels, as these protections are most effective when disclosures are in full compliance with legal guidelines. 

Gather Evidence

Gathering strong evidence is essential in substantiating your claim. This includes collecting emails, documents, witness statements and any other materials that can corroborate your allegations of wrongdoing. The credibility and impact of your disclosure significantly depends on the quality and relevance of the evidence you present.

Choose the Right Channel for Disclosure

Selecting the appropriate channel for your disclosure is a critical step in the whistleblowing process. The general rule is to first attempt to resolve the issue within your organisation. This typically involves using designated internal channels, such as reporting to a supervisor, manager or through a formal whistleblowing procedure. This internal approach allows an organisation the opportunity to address and rectify the issue directly.

However, if internal resolution is not feasible, for instance, if the nature of the issue makes it unrealistic or impossible to address within the organisation, or if you have already attempted an internal resolution without success, then it becomes necessary to consider external disclosure. In such cases, the disclosure should be made to an appropriate prescribed person or body. The disclosure must fall within the jurisdiction of the external person or body to ensure that it qualifies as a protected disclosure under whistleblowing laws.

Seek Professional Advice

Consulting with a professional who specialises in whistleblowing law is highly beneficial. An expert can provide invaluable advice on navigating the complexities of your case, ensuring that your actions are legally sound and strategically planned. They can also help you understand the potential risks and benefits of different courses of action.

Make a Disclosure

Once you are fully prepared and informed, proceed with making your disclosure. It is important to communicate your concerns clearly, factually and without personal bias. How you present your disclosure can greatly influence how it is received and acted upon. It is not uncommon for employers to attempt to quash an Employment Tribunal claim by stating the case was not made in “good faith” and is formed due to a grudge against the employer. So you must ensure the protected disclosure is completely unbiased from the outset. 

What Happens After Blowing the Whistle at Work?

After blowing the whistle, the immediate response typically involves your employer initiating an investigation into the reported misconduct. This process should be conducted impartially and thoroughly, aimed at uncovering the truth about your allegations. During this phase, you can expect to receive updates about the investigation and its progress. It is crucial for employers to handle the situation sensitively, protecting your rights as a whistleblower.

Simultaneously, you might experience changes in workplace dynamics. Whistleblowing can unfortunately impact your working relationships, potentially leading to a feeling of isolation. Under UK whistleblowing law, you are protected from retaliation such as dismissal, detriment or any other mistreatment due to your disclosure. However, suppose you do face adverse treatment or feel that your concerns are not being adequately addressed. In that case, it is important to seek legal advice to understand your rights and the steps you can take, including the possibility of a whistleblowing claim at an Employment Tribunal.

Making a Whistleblowing Claim 

Blowing the whistle on wrongdoing at work requires courage, preparation and an understanding of your legal rights. By following these steps, you can ensure that your actions are protected under whistleblowing law in the UK and that you have a strong whistleblowing case should you experience any unfavourable treatment. Remember, whistleblowing not only protects public interest but also reinforces a culture of transparency and accountability in the workplace. If you are considering this path, professional whistleblowing advice and support are invaluable to navigating this complex yet vital process.

Should you have any questions about whistleblowing in the workplace, contact Damian McCarthy. Over the years, Damian has represented clients at the highest levels and he has acted in high-profile whistleblowing cases. With extensive experience in employment law, Damian can support you through the process of making a whistleblowing claim. For a free, confidential and no-obligation discussion, complete Damian’s contact form today. 

The Importance of Evidence in Workplace Discrimination Claims

Navigating workplace discrimination claims is a complex yet crucial aspect of employment law. When experiencing discrimination at work, the success of your Employment Tribunal claim hinges significantly on the evidence you present. This is a fundamental aspect of discrimination claims across all work environments in the UK and beyond. 

Effective evidence can range from direct statements to patterns of behaviour that indicate unfair treatment based on protected characteristics. Below, we have explored discrimination issues and the importance of gathering evidence in more detail. If you are currently being treated unfairly and facing workplace discrimination, you can ensure you are building a robust legal case and will be awarded the compensation you deserve. 

The Role of Evidence in Proving Discrimination

Discrimination in the workplace can take various forms; direct discrimination, indirect discrimination, harassment and victimisation. Being treated less favourably than someone else can vary from not being hired due to a protected characteristic to being treated in a way that causes you emotional or physical suffering. Proving discrimination, however, can be complex and requires substantial evidence. 

For instance, evidence might need to demonstrate a pattern of behaviour over time, not just a single incident, to effectively illustrate systemic or ingrained discriminatory practices. This could involve showing how decision-making processes, like promotions or pay raises, consistently favoured one group over another. Additionally, evidence can come from a variety of sources, including internal communications, employee witness statements and business records. All of these elements combined can help to paint a comprehensive picture of the discriminatory behaviour experienced, strengthening your Employment Tribunal case.

Types of Evidence in Discrimination Claims

When making a discrimination claim, the type of evidence presented can significantly influence the outcome. This evidence can be categorised into various types, each playing a unique role in proving that discriminatory behaviour has occurred; 

  • Direct Evidence – This includes explicit statements or actions that directly indicate discriminatory behaviour. For example, emails, messages or recorded conversations where discriminatory language or intentions are evident.
  • Indirect Evidence – More commonly, discrimination cases rely on indirect evidence. This may include patterns of behaviour, such as a consistent preference for certain types of employees or policies that disproportionately affect certain groups.
  • Witness Statements – Testimonies from colleagues or other witnesses who have observed the discriminatory behaviour can be very powerful. This can include both current and former employees.
  • Documentary Evidence – Employment records, performance reviews, communication records and other official documents can provide a background to a discrimination claim, showing inconsistencies or biases in treatment.

Gathering and Presenting Evidence

The Equality Act 2010 (EqA) protects employees at every stage of UK employment, from recruitment to differences in employee pay, and enables you to take legal action if you are treated unfavourably at work. Collecting and effectively presenting evidence is crucial in building a strong workplace discrimination claim. This process entails several key actions;

Documenting Incidents

  • Keep a Detailed Record – It is vital to document every incident of discrimination, noting not just the dates and times, but also the context and any immediate consequences. This comprehensive record helps establish a pattern of behaviour that can strengthen your Employment Tribunal claim.
  • Context Matters – Alongside the basic details of the incidents, include the context in which the discrimination occurred. Was it during a meeting, via email or in a performance review? The setting can sometimes add weight to the nature of the discrimination experienced in the workplace. 

Preserving Communications

  • Save All Relevant Communications – Make copies of any emails, messages or written notes you have received that reflect discriminatory remarks or decisions. This also includes any indirect references that might imply discriminatory motives as they can add to your discrimination claim. 
  • Maintain Chronological Order – Try to organise any communications in chronological order to depict the sequence of events clearly. This can help demonstrate how the discriminatory behaviour has evolved over time and why it resulted in you leaving the company, for instance. 

Seeking Witnesses

  • Identify Potential Witnesses – Colleagues who have witnessed the discrimination or have experienced similar treatment can provide crucial testimonies. Reach out to people in the workplace who you think would be willing to assist you with your discrimination claim and ask them to write down what they have witnessed. 
  • Credibility of Witnesses – Consider the credibility and position of each potential witness. Testimonies from individuals in varied roles can offer a comprehensive view of the discriminatory environment.

Legal Representation

  • Engage an Employment Law Specialist – A legal professional experienced in discrimination cases can support you with your Employment Tribunal claim. They can provide invaluable advice and guidance from the outset, and represent you throughout the legal proceedings. 
  • Professional Assessment – An expert in discrimination and employment law can assess the strength of your evidence, advise on any additional information needed and present the evidence in the most effective way during legal proceedings. They can help you turn a difficult case into a winning one. 

Getting Support with Discrimination at Work in London 

All in all, evidence is the cornerstone of any workplace discrimination claim. Understanding what constitutes strong evidence and how to effectively gather it is crucial. For anyone facing discrimination at work, being proactive about documenting incidents can make a significant difference in the outcome of a claim. Do not hesitate to seek professional legal advice either as most discrimination claims need to be filed within three months less one day from the date that the most recent discriminatory behaviour occurred. 

Should you be searching for someone who can assist you with discrimination at work in London, contact Damian McCarthy today. Damian is regularly instructed on discrimination cases involving difficult issues and he has an in-depth understanding of discrimination law. He is known for his client-focused approach and will never settle your case because it is in his interest to do so. He will quickly get to the heart of your case and help to ensure you have everything required to develop a winning strategy that will get you results.

Tackling Age Discrimination in the Workplace

Age discrimination at work is something that many employees face and it can take various forms, from subtle biases to overt actions that negatively impact your career. Contrary to common belief, this type of discrimination can affect all age groups. Not only are older people discriminated against in the workplace, but younger people are too.

In addition to impacting the individual being discriminated against, age discrimination has far-reaching consequences for both employees and organisations. It influences morale, leading to reduced job satisfaction and productivity. Not to mention, it can limit innovation and growth as organisations do not invest in age-diverse teams.

Addressing discrimination requires proactive steps. Employees should be aware of their rights under UK law and take appropriate action when necessary. By tackling age discrimination head-on, employees can help to create a fairer and more inclusive work environment for everyone. Below we have delved into the issue of age discrimination in more detail.

What is Age Discrimination at Work?

Age discrimination occurs when an employee is treated unfairly because of their age. It can affect people at every stage of UK employment, from recruitment and promotions to dismissal and retirement. However, this type of discrimination often targets those who are considered to be “too young” or “too old” for a particular role. Recognising the signs of age discrimination in the workplace is the first step in addressing it effectively.

Common Forms of Age Discrimination

There are several different types of discrimination outlined in employment law. The Equality Act 2010 (EqA) lists “age” as a protected characteristic and employees are protected against direct discrimination, indirect discrimination, harassment and victimisation. Some common forms of age discrimination at work include;

  • Hiring and Promotion – Age discrimination can manifest during job application and promotion processes. Both older and younger candidates can be unfairly excluded or overlooked, and without objective justification, this can be discriminatory.
  • Unfair Treatment – Employees may face unfavourable treatment when it comes to opportunities, like access to training and development, based on their age. This can have a knock-on effect on their professional growth and career prospects.
  • Harassment – Age-related jokes and comments in the workplace can create a hostile environment that undermines job satisfaction. This type of discrimination can have a big impact on workplace culture.
  • Redundancy – Older employees are sometimes unfairly chosen for redundancies, especially when organisations are trying to cut costs or adopt new technologies. This can be considered direct discrimination.
  • Stereotyping – Assumptions about an employee’s capabilities, adaptability or willingness based on their age are common in the workplace. When acting upon stereotypes and prejudiced attitudes it can lead to discrimination.

Tackling Age Discrimination in the Workplace

There are lots of ways employees can be proactive in preventing age discrimination at work.

Promote Age Diversity

Encourage your organisation to embrace age diversity and inclusivity. Advocate for policies and practices that value employees of all ages and promote a culture of respect and equal opportunities. By championing age diversity, you can contribute to creating a more inclusive workplace for everyone.

Know Your Rights

It is always beneficial to familiarise yourself with age discrimination laws in the UK, such as the EqA which provides protection from age discrimination at work. Understanding your rights is the first step in addressing the discriminatory behaviour you have experienced, empowering you to take informed action to protect your interests.

Document Everything

Keep a detailed record of any age-related incidents or discriminatory actions you experience or witness in the workplace. This documentation can be crucial if you decide to make an internal complaint or take a claim to the Employment Tribunal, as it provides concrete evidence to support your case and get the justice you deserve.

Raise the Issue

If you experience age discrimination, it is essential to report it to your HR department or a relevant senior team member within your organisation promptly. Many companies have policies and procedures in place for addressing discrimination complaints, and you should also adhere to the ACAS Code of Practice on Discipline and Grievance Procedures.

Speak to Colleagues

If you feel comfortable doing so, consider talking to colleagues who may have witnessed the discrimination or experienced it themselves. Their support and willingness to share their experiences can be valuable when addressing the problem, and it can create a stronger collective voice against discrimination.

Seek Legal Advice

If the issue persists, escalates or you are unhappy with how it was handled internally, it is advisable to seek advice from an employment law expert who specialises in discrimination cases. They can assess your situation, provide guidance on your legal options and advocate on your behalf if necessary, ensuring your rights are protected at all times.

Make a Claim

With the assistance of an employment law specialist, you can take a discrimination claim to the Employment Tribunal if necessary. Pursuing a claim and getting compensation is a significant step in holding your employer accountable for the discrimination you experienced and seeking justice for any harm you have suffered at work.

Speak to an Expert About Age Discrimination at Work in London

Age discrimination is a serious issue that should not be tolerated. As an employee, you have rights and protections under the law. By understanding the forms of discrimination and seeking legal assistance when necessary, you can play a vital role in combating age discrimination in the workplace. Remember that addressing age discrimination benefits not only individuals but also organisations that strive for a more diverse and inclusive workforce.

Should you require support with an Employment Tribunal claim for discrimination at work in London, do not hesitate to contact Damian McCarthy. Damian is a dedicated employment law specialist and over the years, he has represented clients at the highest levels with a wide range of discrimination claims. He has achieved outstanding results in some very complex cases and will be committed to your claim.

With extensive experience, Damian can not only provide you with sound advice but also help you to get the compensation you deserve following an incident of age discrimination at work. You can learn more about how Damian can help on his website today. 

Disclosing Information in the Public Interest; A Guide for Whistleblowers in the UK

Whistleblowing is vital for upholding transparency and ethics in the workplace. In the UK, blowing the whistle is protected under employment law, with both the Employment Rights Act 1996 (ERA) and the Public Interest Disclosure Act 1998 (PIDA) making it unlawful for employers to be unfairly treated because they have disclosed wrongdoing. However, to ensure protection, there are several rules that a whistleblower must adhere to.

When blowing the whistle, the information must be disclosed to a prescribed person and the disclosure must be made without malice. It is also essential for employees to understand the concept of a “qualifying disclosure” and the requirement that the information disclosed is in the public interest. Below, we have delved into these crucial elements of UK employment law to help employees safeguard their rights when deciding to blow the whistle.

Qualifying Disclosure – What Does it Mean?

In the context of UK employment law, for a disclosure of information to be considered a protected disclosure, it must be a “qualifying disclosure”. Not all information that is shared will qualify for legal protection. If the disclosure is not classed as protected disclosure and you suffer detriment or get dismissed for blowing the whistle, you may not have the option to bring a claim to the Employment Tribunal. It is crucially important that employees understand what qualifying disclosure is before they blow the whistle.

  • General Public Interest – An employee has the freedom to reveal any wrongdoing in the workplace that does not abide by recognised employment law ethics. However, there should be a reasonable belief that the disclosure of information is in the public interest.
  • Employment Law Violations – The disclosure of information should relate to specific types of wrongdoing. This includes; a criminal offence, failure to comply with any legal obligations, miscarriages of justice, health and safety violations, damage to the environment, and the cover-up of any of these.
  • Reasonable Belief – When disclosing information, an employee must have a genuine and reasonable belief that the information they are disclosing falls under one or more of these categories. This belief is critical in determining the legitimacy of the disclosure.

The Public Interest Requirement

When making a whistleblowing claim, there are several ways employers will attempt to defend themselves. From stating that the case was not made in “good faith” to arguing that the detriment or dismissal was the result of unrelated factors, it can be difficult to win a whistleblowing case. Another common way employers try to discredit a claim is by stating that any disclosure was not made in the public interest.

The requirement for the disclosure to be in the general public interest underscores the importance of whistleblowers not merely serving their personal interests but acting in the broader interests of society. There are some key points to be aware of regarding the public interest requirement of qualifying disclosure;

  • Broad Significance – The disclosure must have a broader significance beyond the individual whistleblower’s concerns. It should relate to matters that affect the public, a group of people or society at large.
  • Preventing Harm – Disclosed information should aim to prevent harm, protect public health and safety or promote the greater good. It should not be motivated primarily by personal gain or grievances.
  • Legitimate Concerns – Whistleblowers must demonstrate that their concerns are legitimate and well-founded, showing that the information they are disclosing genuinely serves the public interest.
  • Balancing Act – UK employment law seeks to strike a balance between protecting whistleblowers and ensuring that disclosures are in the public interest, rather than being used as a means to settle workplace disputes.

Why These Criteria Matter

Understanding the criteria of a qualifying disclosure and the public interest requirement is of paramount importance for whistleblowers. It is highly recommended that you seek legal advice before blowing the whistle, especially if you do not know much about whistleblowing legislation. Ensuring you qualify for protected disclosure matters for reasons such as;

Legal Protection

Simply put, whistleblowers who do not meet the criteria may not receive legal protection. Unfortunately, employees may not be able to make an Employment Tribunal claim if they have not considered whistleblowing laws before voicing their concerns about wrongdoing. Having robust legal protection is crucial to being shielded from retaliation, whether this is in the form of detrimental treatment or dismissal, offering a safety net when blowing the whistle. 

Reassurance

A clear understanding of what qualifies as a legitimate disclosure is essential for whistleblowers. It empowers them to make well-informed decisions about reporting wrongdoing in the workplace. Clarity regarding the criteria of qualifying disclosure ensures that whistleblowers can confidently step forward when they believe an act of wrongdoing has happened, is happening or will happen, knowing they are doing so within the bounds of the law.

Impactful Whistleblowing

The criteria, especially the public interest requirement, serves as a compass for whistleblowers, directing their actions toward matters of significant societal concern. By focusing on public interest matters, whistleblowers become catalysts for positive changes, accountability and the greater good. This ensures that whistleblowing is not merely a tool for personal grievances but a force for addressing critical issues that affect many.

Protection Against Malicious Claims

The definition of what amounts to a disclosure and rules that any whistleblower must adhere to play a pivotal role in safeguarding the integrity of the whistleblowing process. They help prevent individuals from misusing whistleblowing protections for personal gain or ulterior motives. This protection ensures the system remains fair, encouraging genuine whistleblowers to come forward while discouraging malicious claims that could undermine trust in the process.

Making a Whistleblowing Claim

Safeguarding whistleblowers and their rights under UK employment law is essential for upholding ethical standards in the workplace. By ensuring that disclosures meet the criteria of a qualifying disclosure and genuinely serve the public interest, employees can confidently report wrongdoing without fear of retaliation. Understanding the legal requirements when blowing the whistle is key to ensuring effective protection under the law.

To get some whistleblowing advice from an experienced employment law specialist, contact Damian McCarthy today. Over the years, Damian has been regularly instructed on high-profile whistleblowing and unfair dismissal claims, and he fights hard to get the results needed. With a client-focused approach, Damian can get to the heart of a case very quickly and develop a winning strategy. He will guide you through the difficulties that you will face and be honest throughout the entire process.

If you are a whistleblower in London, where Damian is able to do so, he will provide a free initial assessment and advise you on how to proceed.

Proving Dismissal Is A Proportionate Means Of Achieving A Legitimate Aim

Discrimination arising from disability is unlawful in the UK and employees are protected by the Equality Act 2010 (EqA). Under Section 15 of this key piece of legislation, it states that;

“(1)A person (A) discriminates against a disabled person (B) if—

(a)A treats B unfavourably because of something arising in consequence of B’s disability, and

(b)A cannot show that the treatment is a proportionate means of achieving a legitimate aim.”

Therefore, the burden of proof is on the employer and if they wish to establish justification under this section of the EqA, they will need to prove that the discriminatory treatment was reasonably necessary to them achieving their aim.

When a case is taken to the Employment Tribunal (ET), the judge will have to weigh the discriminatory effect of the treatment against the needs of the employer and determine whether one outweighs the other. Ultimately, the more serious the impact of the treatment, the more well-founded the justification of the treatment must be in order for it not to be discriminatory. Should there be a less discriminatory way of achieving the aim, it will be incredibly difficult for an employer to justify the discrimination under Section 15(1)(b).

Disability discrimination cases can be even more complicated when they involve dismissal and the ET will need to focus on the dismissal itself as well as the process by which the dismissal was achieved. In the recent case of Department for Work and Pensions v Mrs Susan Boyers, the respondent claimed that the claimant’s dismissal was a proportionate means of achieving a legitimate aim. However, the ET did not agree. 

What happened in this case?

The claimant worked for the respondent from September 2005 until January 2018 when she was dismissed. 

In December 2013, the claimant was referred to the respondent’s occupational health

service concerning the migraines she was suffering from. Around the same time, the claimant raised an issue about a colleague who she said had been bullying and harassing her. 

In January 2014, the claimant asked to move desks to be away from this colleague, but this was refused. In April 2014, she asked again and said the increase in her migraines could be a result of stress arising from her colleague’s behaviour. She also disclosed that she had been treated for depression, stress and panic attacks as a result of her colleague’s behaviour. 

During 2015 and 2016, the claimant continued to ask to move to a different team or different floor of the building and these requests were all refused. In July 2016, the claimant became upset at work whilst her line manager was on holiday. Another manager intervened and arranged for her to be moved to a different floor immediately. Then, in January 2017, the claimant was moved to a different team. 

In February 2017, after a difficult call with a customer, the claimant broke down at her desk. She contacted her GP surgery and received a note that stated she was unfit for work due to work-related stress. The claimant did not return to work until she undertook a work trial at another location later that year. 

In March 2017, the claimant submitted a grievance about how the issues of bullying, stress and illness had been handled by the respondent. She stated that she could not return to work anywhere in the centre where she previously worked, but she could see herself returning to work at another location. After investigation, this grievance was not upheld.

The claimant’s line manager offered her a work trial at the Eston centre in June 2017 and she said she was willing to return to work at Eston. The work trial started in September 2017 and by October 2017, the respondent’s managers decided that the work trial had not been a success and the claimant would have to return to work in her previous location. After receiving this news, the claimant was ill with anxiety and depression, and she obtained a GP note stating that she was unfit for work due to work-related stress.

In January 2018, the claimant was dismissed and the reasons for this decision were set out in writing. These reasons included that the trial at Eston had not succeeded and the claimant refused to return to work in other centres.

The claimant brought various claims to the ET under the EqA relating to both the termination of her employment and the way she was treated during her employment. 

What did the ET decide?

During the ET’s first judgment, it was found that the claimant’s dismissal was unfair and it was declared discriminatory under the EqA. In particular, it found that dismissal was a disproportionate response for the purposes of Section 15(1)(b) in the EqA. 

The respondent argued that it had fairly and lawfully dismissed her for capability reasons. They appealed this decision and questioned whether the ET erred when concluding that the dismissal could not be justified as a proportionate means of achieving its two legitimate aims of; protecting scarce public funds/resources and reducing the strain on other employees caused by the claimant’s absence.

The Employment Appeal Tribunal (EAT) upheld the appeal and remitted the case to the same ET to assess whether the dismissal was proportionate to the respondent’s legitimate aims. The EAT concluded that the ET had wrongly focused on the process leading up to the dismissal decision without properly examining whether the dismissal itself was justified by reference to the aims relied upon by the employer. 

Upon remission, the ET reached the same conclusion that the respondent failed to show that its decision to dismiss the claimant was a proportionate means of achieving the identified aims. The ET found that the respondent failed to evaluate the claimant’s work trial in the different role and location, which, if properly evaluated, might have avoided dismissal. The ET concluded for a second time that the claim of discrimination arising from disability was well-founded.

The respondent appealed the ET’s second judgement again stating that the ET erred in law and/or acted perversely in not finding the claimant’s dismissal to have been proportionate.

This second appeal was dismissed. 

Getting some advice about discrimination and dismissal claims in London 

The case above is a clear example of how an ET will weigh up the reasonable needs of an employer against the discriminatory effect of the treatment experienced. Ultimately, should suitable alternative work be available to an employee, there may be a non-discriminatory alternative to dismissal and an employer’s failure to consider this alternative can result in the dismissal being discriminatory and unfair in the eyes of the law. 

If you are experiencing discrimination in the workplace or you think you might have been unfairly dismissed, do not hesitate to contact Damian McCarthy. Damian has extensive experience in employment law and he is regularly instructed to assist with complex claims of discrimination and dismissal. Over the years, Damian has represented clients at the highest levels and he is known for achieving outstanding results. You can trust Damian will always have your best interests in mind and his client-focused approach makes him very popular. To find out more about how Damian can assist you, explore the rest of his website today.

Making Reasonable Adjustments In The Workplace

Disability is one of the listed ‘protected characteristics’ in the Equality Act 2010 (EqA) and if you suffer unfavourable treatment due to having a disability, you may be able to take a claim to the Employment Tribunal. The EqA recognises and protects against several types of discrimination, including; direct discrimination, indirect discrimination, harassment and victimisation, and employees are protected during every section of UK employment. 

Uniquely, when making a disability discrimination claim, employees are also protected against any discrimination that occurs when employers do not make reasonable adjustments in the workplace. Under Chapter 2 of the EqA, all employers have a duty to make reasonable adjustments in the workplace to ensure disabled employees are not at a substantial disadvantage when compared to non-disabled employees. Failure to comply with this duty can result in a discrimination claim being made. 

What are ‘reasonable’ adjustments?

An employer’s duty comprises three requirements;

(3)The first requirement is a requirement, where a provision, criterion or practice of A’s 

puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.

(5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid.                                                    “

Several factors will influence what adjustments are considered to be ‘reasonable’, such as; the cost and practicability of making an adjustment, the size of the organisation, and the resources available to the employer. 

It is important to note that making reasonable adjustments applies to all areas of UK employment. Not only do employers have a duty to make adjustments during the period of employment, but they also have a duty during the recruitment and dismissal processes too. Many employees do not realise this is the case and they may be at a disadvantage when compared to non-disabled employees. 

An example of reasonable adjustments not being made

In the case of Knightley v Chelsea & Westminster Hospital NHS Foundation Trust, the claimant was employed as a Lead Midwife for Mental Health in 2009. She played a key role in maintaining high standards of care for women experiencing mental health problems during pregnancy and the postnatal period. 

From around 2007, the claimant suffered from stress, anxiety and reactive depression, and she was taking prescribed antidepressant medication. Problems with the claimant’s attendance started towards the end of 2012 and in 2014, a flexible working arrangement was implemented to help improve the claimant’s attendance record. 

The claimant was then off work from August 2015 to September 2016 on the grounds of ill health. Upon returning to work, she was temporarily deployed to the antenatal clinic to facilitate the resumption of her substantive post. She was then off work on the grounds of ill health from March 2017 until the termination of her employment. 

There was a long-term sickness absence hearing in January 2018, this was the second hearing of this kind that the claimant had been involved in. The claimant was reminded that this hearing could result in her dismissal. During the hearing, the claimant said she was unfit to work indefinitely, she no longer felt able to return to work and there were no adjustments which would enable her to do so, and she wished to apply for ill-health retirement. 

The outcome of the hearing was that the claimant would be dismissed with 12 weeks’ notice on grounds of capability. A letter was sent to the claimant summarising the reasons for dismissal and notifying her of her right to appeal within ten working days of the letter. The claimant asked for a two-week extension of time to appeal, but this was refused. She submitted a summary appeal, but this was not considered by the respondent as it was out of time. This led to the claimant making a claim for unfair dismissal and discrimination arising out of disability. 

An Employment Tribunal upheld part of her claim and found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee because it did not allow her an extension of time to appeal. It provisionally awarded the claimant £3,000 for injury to feelings. However, it also found that the claimant would have been dismissed in any event. So, ultimately, the dismissal was procedurally and substantively fair and proportionate. Therefore, her claims for unfair dismissal and discrimination arising out of disability were dismissed. 

The claimant appealed the Tribunal’s decision on 4 grounds. She argued that the Tribunal’s finding that she was unreasonably denied an opportunity to appeal against her dismissal should have led to her other claims succeeding. She said that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding.

The Employment Appeal Tribunal dismissed the appeal and found that this was not a case in which an appeal would have prevented the dismissal of the claimant. Given the strength of the reasons for dismissal, the lack of any realistic alternatives to dismissal and that the appeal would not have made any difference in the outcome, the lack of such an appeal did not render the dismissal disproportionate. 

What can be learnt from this case?

Although the claimant in this particular case did not win her claim, it highlights the importance of always making reasonable adjustments. Making reasonable adjustments during the dismissal process is equally as important as making reasonable adjustments during employment. If some of the circumstances were different in the case above, such as if there was a chance the appeal against the dismissal would have been successful, the claimant might have won her unfair dismissal and discrimination claim. 

This case also highlights how crucial it is that all employers carry out a fair procedure when dismissing an employee. To ensure fair practice is maintained, all employers must abide by two key areas of law and a dismissal should be made on fairgrounds in which there is clear evidence of employee wrongdoing or be made in regards to either an issue of redundancy or underperformance at work. Fairness is always a key component in an employee being properly dismissed and it is something that is taken into consideration in all unfair dismissal claims

Speaking to an employment law expert about disability discrimination claims

If you have any questions about disability discrimination and the duty an employer has to make reasonable adjustments, do not hesitate to contact Damian McCarthy. Damian has more than two decades of experience helping clients who are being discriminated against in the workplace and he is regularly instructed on high-profile and complex discrimination cases. You can rely on Damian to provide you with the sound employment law advice you need. 

Should you want to take a claim to the Employment Tribunal, Damian will work with you to develop a winning strategy that will get you results. Damian will be committed to winning your claim and he always lives up to his reputation of being a tough and effective employment law specialist. You can find out more about how Damian can help you on his website and feel free to get in touch today to arrange a free initial assessment with Damian.

Can Diversity Training Be Discriminatory?

It is incredibly common for companies to require their employees to attend diversity training courses these days, and there are several benefits to implementing policies and procedures that create a culture where equality is valued. This type of training is designed to eliminate discrimination and harassment in the workplace, and a sufficient diversity and inclusion training program can create a safer work environment for all employees. 

Unfortunately, not all companies will conduct this important training course in the right way though and in some circumstances, diversity training can even be discriminatory. It is crucial that all companies ensure their training courses do not go ‘stale’ and that they are delivering training that does not make their employees feel uncomfortable. The way sensitive training of this kind is conducted can easily create an offensive environment and instead of providing a company with legal protection, inadequate diversity training can result in a discrimination claim being made against them. 

An example of when diversity training was discriminatory

In the case of Ms Theresa Georges v Pobl Group Ltd, the claimant was required to attend an equality and diversity training course as part of her induction training. The respondent has an Equality, Diversity and Inclusion Policy which mandates induction training for staff on equality, diversion and inclusion. This course was attended by 16 employees including the claimant. 

The course was taken by Lisa Hearn who had rolled out the course about 180 times by then and had been a trainer for approximately 8 years. 

During the course, Ms Hearn delivered some training on discriminatory words. The slides for this part of the course raised the question ‘what are discriminatory words?’. They made the point that people find different words offensive and just because you do not find something offensive yourself it does not mean that no one else will. 

Ms Hearn conducted an exercise whereby she wrote the words ‘nigger’ and ‘paki’ in their full form on a flipchart. She then asked the attendees to shout out the most derogatory and offensive words that they could think of. These words were then added to the flip chart and Ms Hearn put ticks next to each word that was shouted out more than once. The word ‘nigger’ was shouted out three times and there were three ticks next to it. 

After the exercise, Ms Hearn asked the employees what the purpose of the exercise was. It was agreed that the exercise was to illustrate that some people found some discriminatory words offensive but that they did not have the same impact on everyone. She also acknowledged that the exercise can be uncomfortable and asked everyone if they were ok. 

The claimant felt in a state of shock after the exercise and left the building. She eventually returned and completed the rest of the training course. 

Following the course, the claimant did not return to work. She requested annual leave, which was not authorised, but she did not come in the next day. She called her line manager and explained that she was unable to come to work because of the equality and diversity training. The claimant then wrote a letter of complaint to HR and she was signed off sick with stress. 

Ben Hurrell, Senior HR Business Partner (Learning and Development) investigated the complaint and did not uphold the grievance. The claimant appealed against the grievance outcome and the appeal officer was Lucie Thomas, Director of Learning and Development. She found that everyone she had interviewed had spoken positively about the training course and she did not uphold the appeal. 

The claimant claims that the use of the word  ‘nigger’ in the training environment amounted to racial harassment and she made a claim to the Employment Tribunal. 

The Tribunal found that the claimant was genuinely shocked and distressed following the discriminatory words training, and the use of the ‘n’ word in a group context by the trainer and by others in the group had caused her to feel this way. The unanimous decision of the Tribunal was that the claim for racial harassment was well-founded. 

The use of the full ‘n’ word had the effect of creating a degrading and offensive environment for the claimant and of violating her dignity. This word is a deeply loaded and offensive word with distressing racial connotations and it was found that it caused the claimant to feel deeply offended and uncomfortable. 

The Tribunal also found that the method of delivery for this training course was risky and the course was conducted insensitively. Any protective measures employed would not soften the blow to a person undertaking the training course who has heard words which were loaded and deeply racially offensive. Encouraging employers to say deeply offensive words was a crude and unnecessary way of delivering the training and a more sensitive means of delivering the message could have been employed which would still deliver the stated objective. 

It was concluded that the claimant was harassed on racial grounds and there will be a hearing to consider compensation. 

What employees should know about discrimination claims 

The Equality Act 2010 (EqA) covers issues involving discrimination at work and it recognises several different forms of discrimination. Direct discrimination, indirect discrimination, harassment and victimisation are all protected against, and this key piece of legislation makes it very clear that employees should not suffer unfavourable treatment due to having a ‘protected characteristic’. You can find a list of these protected characteristics under Section 4 of the EqA

Whilst for some employment law claims, you will need to have been employed continuously for a period of 2 years or more, such as unfair dismissal claims, this is not the case with discrimination claims. The EqA provides protection for every section of employment, including both recruitment and training, and discrimination can be generated by different sources. For example, the discrimination in the case above was not the employer’s actions, however, the employer was still held responsible and this is called  ‘vicarious liability’. 

If you are being treated in a manner that causes you either emotional or physical suffering, you may be able to make an Employment Tribunal claim. The majority of discrimination claims need to be filed within three months less one day from the date that the discriminatory comments or behaviour happened. It is beneficial to seek legal advice as soon as possible after the discrimination occurred, this can help to prevent any problems relating to time limits. 

Getting some employment law advice in London

Should you wish to speak to an employment law specialist about a situation in the workplace that has violated your dignity or created an intimidating, hostile, degrading, humiliating or offensive environment for you, be sure to contact Damian McCarthy. You can confidently turn to Damian for employment law advice in London knowing he regularly instructs on high-profile discrimination cases and over the years, he has built a reputation for fighting “tooth and nail” for his clients. You can trust he has the skill required to assist you with your employment law issue and he is known for his client-focused approach. 

With more than two decades of experience, Damian has extensive knowledge of UK employment law and he can provide you with the sound legal advice you need. If you choose to make a claim, whilst working with you to develop a winning strategy, Damian can guide you through any difficulties you may face. He will ensure you are prepared for all eventualities and he has turned very difficult cases into winning cases. For a free, confidential and no-obligation discussion, feel free to get in touch with Damian today.

When Does The Protection Against Disability Discrimination Begin To Apply?

In the UK, it is unlawful for employees to suffer unfavourable treatment due to having a disability and the Equality Act 2010 (EqA) provides protection for every section of UK employment. Disability is a protected characteristic in this key piece of legislation and therefore, an employee can bring a discrimination claim to an Employment Tribunal if they are treated unfairly because they are disabled. There are different types of disability discrimination mentioned within the EqA too; direct discrimination, indirect discrimination, harassment and victimisation, and the UK workforce are protected by this legislation from all of them. 

Under Section 6 of the EqA, disability is described as;

“ (1)A person (P) has a disability if—

(a) P has a physical or mental impairment, and

(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
” 

This definition is relatively wide and it extends to a range of conditions, including certain medical conditions that are listed under Schedule 1, Paragraph 6 including; cancer, HIV infection and multiple sclerosis.

Whilst it is very clear who the EqA protects, it is not as clear when the protection actually begins to apply. For example, in the case of Bennett v Mitac Europe Ltd, the Employment Appeal Tribunal had to establish when the protection against discrimination because of cancer applies. 

What happened in Bennett v Mitac Europe Ltd?

The claimant, James Bennett, made a case that he was dismissed because of his manager’s disability.

Not long after being recruited, Stuart Balaam, Mr Bennett’s manager, was admitted to the hospital with a suspected heart attack. Following this, he sent an email to his colleagues saying he underwent various tests and has a growth on one of his kidneys. He also said he needed to undergo a biopsy to see what the growth is. He then met with the EU Business Head, Ms Huang, and informed her that he expected one of his kidneys would have to be removed. From this moment, he said that her attitude towards him changed. 

Mr Balaam underwent a biopsy and later received a diagnosis of cancer. He was told he would have to undergo an operation and he informed Ms Huang of this straight away. 

After some concerns about the performance of the business and the performance of both Mr Balaam and Mr Bennett, they were both dismissed with immediate effect. The dismissal letters they received said their dismissal was due to “poor performance”. However, Mr Bennett did not think that this was the case and he brought a claim to the Employment Tribunal. 

The Employment Tribunal dismissed the claimant’s claim of direct disability discrimination. The judgment stated; “The claimant’s claim of associative direct discrimination in respect of his dismissal on the grounds of the protected characteristic of the disability of Stuart Balaam is not well-founded.”.

This decision was appealed by Mr Bennett and the Employment Appeal Tribunal later found that the “Tribunal did not note that even if performance was the primary reason for dismissal it did not preclude the possibility that Mr Balaam’s disability was also a material cause.”.

One of the biggest considerations made by the EAT related to when the respondent knew Mr Balaam was disabled. The EAT stated that “an employer’s attitude to a person who is unwell, but not known to be disabled, could be relevant to determining the reason for the treatment of the person once it becomes known that the ill health constitutes a disability”.

The email Mr Balaam sent to his colleagues is of significance in this case as it could be considered the moment the claimant was first disabled due to having cancer and also the first the respondent knew of this disability. 

The EAT determined that this matter now requires remission to consider the date upon which the employer had actual or deemed knowledge of Mr Ballam’s disability and, in turn, whether the claimant was discriminated against because of his manager’s disability. 

When does protection begin to apply?

Chapter 2, Section 2.18 of The Equality and Human Rights Commission code of practice states that “Cancer, HIV infection and Multiple Sclerosis are deemed disabilities under the Act from the point of diagnosis.”. However, the word ‘diagnosis’ does not appear in the EqA and this is where the complication lies. 

Judge James Tayler in the case above said “it is important to distinguish between a person having cancer and having been diagnosed as having cancer. It is the former that is protected.” He also said that “if there is any doubt, the statute prevails over the guidance.”. 

It is important to note in situations where there is some confusion as to when protection against disability discrimination begins to apply, a person can actually be subject to discrimination because they are perceived to have a disability. In this case, there would be no diagnosis date and therefore, it begs the question that an employee could still be discriminated against because of a disability when it is thought that the disability will arise at a later date. 

Ultimately, many employment law specialists agree that the knowledge of a prospective disability can result in an employee being treated unfairly before they have received a formal medical diagnosis. In these circumstances, it is thought that employees should receive protection from the EqA in the same way they would if they had already been diagnosed. 

When making a discrimination claim similar to the one above whereby discriminatory behaviour may have taken place prior to an official diagnosis, it will be up to an Employment Tribunal to determine whether or not this is in fact disability discrimination in the eyes of the law. It is recommended that you seek legal advice should you find yourself in a situation where you think you have been discriminated against and an employment law specialist will be able to provide you with sound guidance tailored to your individual circumstances. 

Speaking to a specialist about a disability discrimination claim

It is fair to say that employment law can be quite complex and if you are unsure whether you may be able to bring a claim to the Employment Tribunal, do not hesitate to contact Damian McCarthy. Damian is regularly instructed on high profile discrimination cases and he has many years of experience handling complex employment law issues. Regardless of what discriminatory behaviour you have experienced, Damian will work hard to understand your case and achieve the results you were hoping for.

The biggest law firms in the UK regularly hire Damian to represent their clients and he has earned a reputation as a tough and effective employment law advocate. Not only will Damian represent you fearlessly, but he will always have your best interests in mind when assisting with your discrimination case. With comprehensive knowledge of discrimination law, you can have peace of mind knowing that you are in very capable hands with Damian. So, get in touch today for a free, confidential and no-obligation discussion.

The Future Of Whistleblowing Claims

In April 2022, MP Mary Robinson introduced a new Whistleblowing Bill to parliament. This new Bill proposes to repeal the UK’s existing Public Interest Disclosure Act 1998 (PIDA) and instead, establish an independent Office of the Whistleblower to protect whistleblowers and ensure their safety. This independent body would set, monitor and enforce standards for the management of whistleblowing cases. It would also provide support and advisory services to potential whistleblowers, as well as create offences relating to the treatment of whistleblowers.

Whilst the PIDA has been protecting individuals who make certain disclosures of information in the public interest for many years now, many agree that the Government needs to review and update the existing UK whistleblowing law. In fact, UK whistleblowing charity; Protect, has launched a new campaign this year. This campaign calls on civil society to help reform the PIDA and fix the current UK whistleblowing law.

If you are considering blowing the whistle and you are interested in learning more about whistleblowing legislation, below we have touched upon what protection the current law provides and what changes charities like Protect are keen to implement.

Existing whistleblowing legislation

The PIDA protects whistleblowers from negative and unfair treatment or dismissal for voicing their concerns and reporting certain types of wrongdoing. Under this piece of legislation, employees and ‘workers’ are protected. This legislation made substantial amendments to the Employment Rights Act 1996 (ERA) to better ensure the protection of workers following several high profile whistleblowing cases. The PIDA provides legal remedy to whistleblowers and most notably, it makes it automatically unfair for employers to dismiss an employee because they have disclosed information in the public interest.

In some circumstances, whistleblowers can bring a claim to the Employment Tribunal and they can be awarded compensation for the detrimental treatment they experienced after blowing the whistle. Similarly, they can also receive compensation if they were unfairly dismissed for being a whistleblower. The amount of compensation a whistleblowing claim generates will be dependent on a number of factors, including the level of sufferance experienced. However, it is important to note that there is no fixed amount to any whistleblowing claim and there is not a financial cap restricting the amount an Employment Tribunal can award.

You can find a definition of the term ‘worker’ under Section 43K of the Employment Rights Act 1996 (ERA) and this is a much wider category than ‘employee’. Unlike other employment law claims, there is no service period required to make a whistleblowing claim either and you will be protected from the moment you begin working for an employer. There are time limits for whistleblowing claims though and all claims need to be submitted to an Employment Tribunal within three months of the date that the subject of the complaint occurred.

What changes do people want to make to whistleblowing legislation?

One of the main reasons why whistleblowing charities, Members of Parliament and employment law specialists alike want to update the UK whistleblowing law is because it does not cover everyone. For example, the legislation does not protect the interest of self-employed workers. So, if they found themselves in a situation where they felt morally obligated to blow the whistle and they experienced detrimental treatment for doing so, they would not be protected. Unfortunately, volunteers and misidentified whistleblowers are not protected either, and there is a lot of legal grey area involved in some circumstances. For this reason, speaking to an employment law specialist is key if you do not fall under the definition of ‘worker’ within the ERA.

Another concern that employment lawyers have about the current whistleblowing legislation is that many employers often attempt to quash a claim by stating that it was not made in ‘good faith’. In order for disclosure to be considered protected disclosure in the eyes of the law and benefit from whistleblowing protection, the disclosure must be made in good faith. This means, there was not an ulterior motive, such as a grudge against the employer. Whilst the Enterprise and Regulatory Reform Act 2013 ensures that a claim will no longer fail if an Employment Tribunal finds that the disclosure has not been made in good faith, the compensation awarded can be reduced by up to 25%. This means that all whistleblowers have to consider how their claim will be viewed before they begin blowing the whistle and this can sometimes prevent them from disclosing information that is actually in the public interest.

The future of whistleblowing

Whilst there is no guarantee that changes will be made to the current whistleblowing law, it is likely that people will continue to campaign for the legislation to be reformed. Many are in agreement that anyone who blows the whistle needs protection and it is crucial that people do not hesitate to disclose information about wrongdoing in the workplace. Should people be apprehensive about the consequences of blowing the whistle there is a risk that things such as; criminal offences, miscarriages of justice, covering up wrongdoing and health and safety dangers will be overlooked. Employees need to feel confident in the fact that they will be protected if they make the decision to be a whistleblower.

Speaking to a whistleblowing solicitor in London

Should you have any questions about whistleblowing legislation and you would like to speak to an experienced whistleblowing solicitor in London, please do not hesitate to contact Damian McCarthy. Whether you just need specialist legal advice or you are looking for representation, you can guarantee that you will be in very capable hands with Damian. Not only does Damian have over two decades of experience working as an employment law advocate on complex cases, but he has even acted as a whistleblower himself and exposed corruption at the highest levels of the legal profession.

Over the years, Damian has worked on high profile employment law cases and his clients include companies, local authorities, trade unions and individual claimants. Damian has a great rapport with his clients and his main concern is always his client’s best interests. To discuss your whistleblowing employment law issue with someone who has the same knowledge and experience as a whistleblowing solicitor in London, feel free to get in touch with Damian for a free, confidential and no-obligation discussion today.

Do Menopausal Symptoms Amount To A Disability?

Within the Equality Act 2010 (EqA), there is a list of ‘protected characteristics’ and anyone who is being treated unfairly because of one of these characteristics may be able to bring a claim to the Employment Tribunal. Under Section 4 of the EqA the list of protected characteristics is as follows;

age;
disability;
gender reassignment;
marriage and civil partnership;
pregnancy and maternity;
race;
religion or belief;
sex;
sexual orientation.

The EqA also goes into further detail about these protected characteristics, providing additional information about who is protected. Under Section 6, disability is defined as;

(1) A person (P) has a disability if—

(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

However, there is still some confusion surrounding what is actually classed as a disability and, therefore, who is protected by the EqA in this regard. In the case of Ms M Rooney v Leicester City Council, the Employment Tribunal was responsible for determining whether menopausal symptoms could be a disability in the eyes of the law. Initially, the Employment Tribunal found that the claimant’s alleged menopausal symptoms did not amount to a disability for the purposes of the Equality Act 2010 and the claim was dismissed.

The claimant decided to appeal this decision and was then granted permission for the appeal against the finding that she was not a disabled person. Upon re-visiting the case, the Employment Appeal Tribunal (EAT) found that the Tribunal did not direct itself as to the statutory definition of “long term” under Paragraph 2 of Schedule 1 of the EqA;

2 Long-term effects

(1) The effect of an impairment is long-term if—
(a) it has lasted for at least 12 months,
(b) it is likely to last for at least 12 months, or
(c) it is likely to last for the rest of the life of the person affected.

The EAT also found that there was no explanation as to how the Tribunal concluded that the claimant’s evidence, which it did not reject, did not demonstrate an effect on day-to-day activities that was more than minor or trivial. It was ultimately concluded that the Tribunal fell into the error of weighing what the claimant could do against what she could not do and the Tribunal erred in law in holding that the claimant was not a disabled person at the relevant time.

The EAT stated that the determination of whether the claimant was a disabled person will require careful factual analysis and the issue must be remitted to the Employment Tribunal.

So, are menopausal symptoms a disability?

Whilst this case has not yet been remitted and there is no final ruling as to whether the claimant has won her case of disability discrimination, the fact that the appeal against the dismissal of the disability discrimination claim was allowed is pivotal. This case has caused many employment law specialists to rethink the definition of ‘disability’ under the EqA and it is likley that even though the menopause is not mentioned in this piece of legislation, employees suffering from menopausal symptoms may be protected from discrimination under the EqA in the future.

Lots of media outlets have been focusing on menopause recently and looking into the effects that menopausal symptoms have on women’s daily lives. With an increased focus on menopause these days, it is likley that more women who have experienced adverse treatment in the workplace because of their menopausal symptoms will consider bringing a discrimination claim to the Employment Tribunal.

What can employees learn from this case?

Although it has not yet been decided whether or not menopausal symptoms will actually amount to a disability in the case above, it should not be assumed that menopausal symptoms will never be considered a disability in some circumstances under key UK employment law legislation. Ultimately, should the menopausal symptoms experienced have a significant impact on an employee’s daily life and, in turn, affect their ability to carry out their work responsibilities as they usually would, this could potentially amount to a disability.

All employees need to be aware that their employers should make reasonable adjustments when required to accommodate anyone with a disability in the workplace. Moving forward, it is recommended that employers consider women’s individual circumstances relating to their menopausal symptoms and they most certainly should not be treating female employees less favourably because they are going through menopause.

Under Chapter 2, Section 13 of the Equality Act 2010, direct discrimination is described as;

A person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others.

Being aware of the protection provided to anyone who is being discriminated against in the workplace is incredibly advantageous and it can help employees to identify if the conduct they are experiencing is unlawful. If you are being treated less favourably due to a protected characteristic, whether this is your age, gender or disability, it is beneficial to seek employment law advice. An employment law solicitor, lawyer or advocate will be able to provide you with additional information about the EqA and help you to establish whether you are being discriminated against in the workplace.

Should you wish to make a discrimination claim against your employer, you do need to act quickly as there are time limits for this type of claim. Most discrimination claims need to be filed within three months less one day from the date that the discrimination occurred. Should the discrimination be an ongoing process, this time period runs from the most recent discriminatory behaviour. An employment law specialist will be able to assist you with your claim and help you to ensure you have the best chance of success.

Getting employment law advice in London

When searching for an employment lawyer in London who can assist you with a discrimination claim, do not hesitate to contact Damian McCarthy. As a Senior Advocate with over two decades of experience handling complex employment law cases, you can trust that Damian will be able to provide you with the sound legal advice that you need, regardless of what your case entails. Damian has a reputation for fighting “tooth and nail” for his clients and he will work closely with you to achieve the best possible results.

As an employment law specialist, Damian has represented clients at the highest levels and he
has turned very difficult cases into winning ones. He is regularly hired by the biggest law firms in
the UK to represent clients and he specialises in discrimination claims and whistleblowing claims. You can always turn to Damian in confidence knowing he values your interests and he will be totally committed to your case. Simply get in touch with Damian today for a free, confidential and no-obligation discussion about your employment law issue.

It is worth noting that whilst Damian will represent people if he can, he is unable to represent
everyone who contacts him. If he is unable to represent you himself, he can still help you to
obtain legal funding and he will also recommend the most suitable employment lawyer for your
individual needs. Damian is happy to help in any way he can, completely free of charge.