Claims for victimisation if you are not disabled

[Marieleeza]

A coworker has made a claim for disability discrimination and failure to make reasonable adjustments.

 

He also claimed for lost wages because he was forced onto sick leave after he raised a grievance

 

and employer would not let him back to work when he produced a fit note. There were some adjustments on the fit note.

 

They delayed his return for more than 8 months and he had threats from their lawyer because of the ET claim. He is worried about costs but I told him that even if he is not found disabled costs are unlikely. Is that true?

 

The question he asked me was "Is the Tribunal likely to award him any compensation for the victimisation if the Tribunal find that he is not disabled.?" He has claimed victimisation after a grievance and an ET claim.

 

He got an expert report but it is not very good and might not hold up and he cannot afford to pay for any more medical evidence.

 

He has a back problem and is in pain all the time. He can walk but he cannot run or make a lot of other stretching movements with his legs.

[becky2585]

I suppose it's theoretically possible, even if he's not disabled, to bring a victimisation claim on the grounds that the protected act was that he alleged the respondent had contravened the equality act. I don't know of any authorities on the point though I'm afraid!

[Marieleeza]

I suppose it's theoretically possible, even if he's not disabled, to bring a victimisation claim on the grounds that the protected act was that he alleged the respondent had contravened the equality act. I don't know of any authorities on the point though I'm afraid!

Thanks for the reply Becky.

I have not seen much about it either. I have seen cases were Claimants were awarded compensation for being dragged through a sham grievance process but the main part of the case was either unfair dismissal or some sort of discrimination.

[reallymadwoman]

My knowledge stems from the old DDA not the equality act. In the DDA, victimisation was quite tightly defined and it certainly wasn't limited to someone who had been discriminated against.

 

Use BAILLI to see if there's a similar definition in the Equality Act.

[Marieleeza]

My knowledge stems from the old DDA not the equality act. In the DDA, victimisation was quite tightly defined and it certainly wasn't limited to someone who had been discriminated against.

 

Use BAILLI to see if there's a similar definition in the Equality Act.

Thanks reallymadwoman I find that site a bit hard to comprehend but I will try.

 

So can you be victimised without having a protected characteristic? Does illness count if it does not match the definition of disability? This stuff is really complex

[reallymadwoman]

It's at least 5 years since I was researching all this stuff and I can't honestly remember the details. I'll have a bit of a search and see if I've still got my notes.

[reallymadwoman]

Can't find my notes but I've been on BAILLI. It's the Equality Act 2010, Part 2, s27.

 

Victimisation

1. A person (A) victimises another person (B) if A subjects B to a detriment because :-

a) B does a protected act, or

b) A believes that B has done, or may do, a protected act.

2. Each of the following is a protected act :-

a) bringing proceedings under this Act;

b) giving evidence or information in connection with proceedings under this Act;

c) doing any other thing for the purposes of or in connection with this Act;

d) making an allegation (whether or not express) that A or another person has contravened this Act.

 

So if B accuses A of discrimination and because of that accusation A treats B less favourably, then B has been victimised. Note that the accusation does not have to be true unless it's made in bad faith.

My understanding is that if they have been victimised then it matters not if they are disabled.

 

This is quite a complex area with potentially large compensation awards. Does your friend have legal advice? If not, he might consider approaching a 'no win no fee' solicitor for a preliminary interview.

[Marieleeza]

It's at least 5 years since I was researching all this stuff and I can't honestly remember the details. I'll have a bit of a search and see if I've still got my notes.

You're a reallynicewoman reallymadwoman.

[Marieleeza]

Can't find my notes but I've been on BAILLI. It's the Equality Act 2010, Part 2, s27.

 

Victimisation

1. A person (A) victimises another person (B) if A subjects B to a detriment because :-

a) B does a protected act, or

b) A believes that B has done, or may do, a protected act.

2. Each of the following is a protected act :-

a) bringing proceedings under this Act;

b) giving evidence or information in connection with proceedings under this Act;

c) doing any other thing for the purposes of or in connection with this Act;

d) making an allegation (whether or not express) that A or another person has contravened this Act.

 

So if B accuses A of discrimination and because of that accusation A treats B less favourably, then B has been victimised. Note that the accusation does not have to be true unless it's made in bad faith.

My understanding is that if they have been victimised then it matters not if they are disabled.

 

This is quite a complex area with potentially large compensation awards. Does your friend have legal advice? If not, he might consider approaching a 'no win no fee' solicitor for a preliminary interview.

He has seen a solicitor who told him that if the disability discrimination reasonable adjustments is lost there is not much left

 

The two protected acts are the grievance and the ET claim, which should meet the definition above but solicitor says that it is

 

really hard to get to second stage (is that the reverse burden of proof?) on victimisation claims.

 

Sollicitor also says that victimisation claims are small and that bloke might have to pay costs if her pursues the disability claim on

 

weak medical evidence.

 

 

What do you think?

[johnvernon74]

My understanding that under the equality act, if your employer does not believe you have a disability - its upto a tribunal to decide if a claim has been raised for Disability Discrimination. I recently had a claim for Disability Discrimination and settled out of court. The victimisation part would fall under the same (however not sure)

[Marieleeza]

My understanding that under the equality act, if your employer does not believe you have a disability - its upto a tribunal to decide if a claim has been raised for Disability Discrimination. I recently had a claim for Disability Discrimination and settled out of court. The victimisation part would fall under the same (however not sure)

You are correct but the Tribunal always follows the medical experts. My mate is suffering and nobody disputes that but the evidence is saying that it is not substantial.

[becky2585]

Did he produce a statement of disability? It's usually for a phr but of disability is disputed it's the claimants chance to show his daily routine and the effect his disability has. It is also possible for some disability claims to fail but others to succeed, his eggs aren't all in one basket, so I still think it may be theoretically possible.

[Marieleeza]

He has seen another medical expert but has not had the report yet. The solicitor says that the Tribunal would consider the report but that the case might be postponed. If that happens I fear that he will owe the solicitor for the hearing days as the hearing is scheduled for May 10th and then have to pay for another Tribunal. This is really too pricey for an ordinary worker.

[johnvernon74]

Is this person still working there? ET claims get very expensive with solicitors and barrister fees. Can your friends solicitor speak to the company with a view to a settlement?

[becky2585]

Solicitors can only charge for the time spent, unless it's on a conditional fee agreement or a fixed fee, so i would hope they wouldn't have to pay for a postponement!

 

I checked the victimisation point today, incidentally. Apparently it's easier to win victimisation than discrimination claims and it's still possible even if the claimant isn't disabled. So that's good news!

[Marieleeza]

Solicitors can only charge for the time spent, unless it's on a conditional fee agreement or a fixed fee, so i would hope they wouldn't have to pay for a postponement!

 

I checked the victimisation point today, incidentally. Apparently it's easier to win victimisation than discrimination claims and it's still possible even if the claimant isn't disabled. So that's good news!

 

Yes that is good. I thought he might have to pay because the Tribunal time was booked.

 

He is back at work but redeployed until after ET. Can he be forced to work for managers involved if ET postponed.

 

 

Can the Respondent claim costs for postponement because extra medical evidence introduced?

[lbruk]

The respondent cannot claim costs, the tribunal can award them, but its very rare that a claimant has to pay the respondents legal fees.

[Marieleeza]

Is this person still working there? ET claims get very expensive with solicitors and barrister fees. Can your friends solicitor speak to the company with a view to a settlement?

Big organisation that never offers compromise but prefers to use up tax payer's money defending lies.

 

The lies and the stink of the internal process promted him to pay out a few K. Employer very confident that this would never get to ET but he has managed to get full discloslure and their statements out of them so I consider that a bit of a victory in itself.

 

Solicitor seems good on disability but does not seem to know much about victimisation. The impression I get it that it is not argued all that often except in the context of trade union activity.