'Objective justification' & PCP in EqA 2010

[prishan]

I think I am in the right place to look for answers to my questions.

my question is whose duty it is to find the pcp( provision, criterion or practice) in disibility discrimination case ?

Employer, employee or the tribunal in disability in equality act 2010 ?

 

thanks in advance

[Emmzzi]

I'd say the person bringing the case, and the ET will decide if they agree - but context is everything - do you want to give us some more details?

[prishan]

Thank you very much for your kind inquiry and concern Emmzzi ,i am happy to give you more info

Its about my friend who is fighting his case against his ex employer for disability discrimination. My friend is doing it himself and I am trying to give him moral support and draft for him various legal documnets when possible. He earleir lost his discrimination and unfair dismissal claim in the emloymnet tribunal as it found that his claims are not well founded. However, EAT( appeal tribunal) has taken his ground of appeal on discrimination in the sift to a full hearing.

 

The ET put the burden on him rather than on the emloyer for their failing to make reasonable adjustment.It has though identified that he is covered by the Equality act of 2010 for having ASD and also that the employer did have knowledge of his disability( short report being provided by the GP). ET says as he did not provide them a full report from his specialist( in his possession) to the employer could not make the reasonable adjustment. Secondly, as he did not go to the Ocupational health on time employer could not have the medical advice to carry out, however when they finally received the same Occ H report the emloyer refused to accept it. Now, they changed their goal post and wanted him to be examined by their specialist which they could have done 8 months ago. ET acepted the employers argument and rejected Occ Health advice.

 

ET in addressing the discrmination ground did not identify the pcp, hence did not identify the substantial disadvantage, but went on stating that employer could not make the reasonable adjustments because he did not provide the full report, did not attend the occupational health and when he did attend the ocuational helath can not make resonable adjustment as they are not specially qualified to assess ASD.

 

Fact of the matter is the emloyer did carry out an external appraisal of my friend's performance when his disability was unknown but afterward he was diagnosed having a life long disability. the employer refused to discard the report despite of the fact that he was disable at the time of his assessment. Instead resondent insist he should take a demotion then thye will make reasonable adjustments in the demoted post. He refused demotion. ET has agreed with respondent's position.

 

EAT accepted the appeal for hearing on the ground of discrete issues of law.

 

Having said all in brief above my question to the learned readers is do you see what are the pcp's here that he can argue that ET has failed to consider?

 

He was dismissed in the knowledge of his ability- is that a pcp?

 

The emloyer continued to hold te assessment report against him which was preared without the knowledge of his disability- is that a pcp?

 

using that report to demote him in spite of his disability- is that pcp?

 

ET used 'Objective justification' prinple to justify employers discrimination.

 

Can employer use ' objective justification' in competence issue due to non disability factor?

 

It is highly appreciated for your valuable comments.

 

thank you in advance for your kind support..

[becky2585]

The burden of proof in discrimination cases is a strange one.

 

The initial burden is on the claimant to show facts from which discrimination may be inferred. The burden then shifts to the respondent to show that the discrimination did not occur.

 

In your friends case, they will need to identify a PCP which would put people with their protected characteristic at a substantial disadvantage compared to your average employee. They will then need to show how it adversely affected them personally. Provided they can do both of these things, the burden will then shift to the respondent to either show that no discrimination occurred, or that if it did, it can be objectively justified.

[prishan]

Thank you very much Becky and Emmzzi for your thoughtful explaining, although ET did find that objectively justfied EAT has allowed a full hearing. I wonder what princiles we can use to show in the FH that ET has used a wrong test ie the aim is not leag/real and or the means not proportionate or appropriate and necessary. Thats where we are struggling.

 

Any view will be highly appreciated

 

Cheers

[prishan]

I have some questions I am looking for clarification and I believe you can help me out.

 

Firstly, can an employer use legitimate aim and proportionate means in issues of competence in an emloyee with no disability? for clarification if an emloyee is alleged to have deficiencies in his competence and the expressed term in his contract suggest that the employer has only option to deal with that through the professional competence procedure in the contract, can the emloyer use this objective justification in the tribunal without resorting to the competence procedure and propose a demotion as means to the employee or alternatively a dismissal if the employee does not accept the demotion?

 

I hope my question is clear as I wonder this principle is only applicable in discrimination if I am not wrong. Am I?

[Emmzzi]

By professional competence procedures, do you mean via a governing body like the law society or medical equivalent? Or do you mean routine "performance management"?

 

It's going to depend on exactly what the contract says, and the employee handbook, and any agreement in place with the trade unions. But generally an under-performing person can be dismissed or demoted if there are serious performance issues and that'd be considered normal; sometimes. often following an period of improvement plan, retraining, supervised work, etc.

 

I'm confused now though. Is the case about performance or reasonable adjustments or what?

[prishan]

its medical equivaent ie in NHS trust contractual procedures. The erformance issue was not a serious one for the employer to invoke any competencey/disciplinary procedure rather a traing was recommended which the emloyer failed to arrange. However, the orginating concerns were interpersonal skills and communication related and eventually he was diagnosed with having Asoerger's clearly explains his disadvantages arising from this. Yet, employer instead of invoking procedure wanted to downgrade him for under performance unconnected to his disability but using the priciple of objective justification for alegitimate aim of 'patient safety'.Our argumnet is the aim can not acheived by down grading to another clinical post in which patient will continue if the legitimate aim is a real aim and objectively considered. In other words, emloyer declines to admit that the performance issues are connected with his disability while at the same time they tempt to use the above principle applied in discrimination claim for non disability factors.

 

Can they do so and sustain their contention in the appeal Court?

 

Hope this explains

[Emmzzi]

Sometimes, no matter what changes you make, an employee is unable to carry out a task due to their disability. It would seem in a medical role where communication is very important, that might be be of those occasions for your friend.

 

Is that possible?

[phaitun]

Part of reasonable adjustments would be making allowances for your friend to be able to follow a rewarding career plan with the same opportunities for advancement as those without the disability, u less it can be justified under the proportionate means to a legitimate aim argument. There are stated cases that have legal precedent i have researched cases in relation to stammering and dyslexia. The dyslexia case was regarding a police inspector who complained that the nationally recognized and accepted uk standard promotion process was discriminatory against persons with his particular disability, he won the case, resulting in allowances of increased time to complete the exams for those candidates who suffered from dyslexia of similar disabilities.

 

it may be that if the criteria of the role particularly discriminates against those with aspergers or similar communication problems for safety, or other reasons such as risk of litigation from patients etc then this should be recorded in a equality impact assessment as direct discrimination on the grounds that it is proportionate means of achieving a legitimate aim. That aim being safety or adverse risk to the organisation.

 

if there is no such equality impact assessment then the friend should ask for one asap, my experience of public sector are that they are simply quite clueless with these issues and probably wont have one.

they would have had advice from a hr rep, most probably panicked when they realised there was a chance of litigation against them and without thinking about any consequence or damage to the career of your friend, instead i guess they immediately removed your friend from front facing work under the pretence of capability or similar BS with no real risk assessment of his/her needs, abilities or previous work history. They would not have considered, researched via expert opinion or generally had any idea of what aspergers in the friends individual case would have actually resulted . Has any such assessment been carried out?

 

i will try and find the police case on dyslexia as it is quite interesting.

 

i am in and out of the forum at the moment due to my own ET and battle ongoing for past 12 months and i am also quite ill as a result of bullying by my managers.

 

it seems that rather than dealing with your friend with thought, care and searching for ways to help the friend remain in role, instead they kneejerked and sent him/her to Coventry. A very common occurrence in public sector according to my union solicitors.

[becky2585]

Part of reasonable adjustments would be making allowances for your friend to be able to follow a rewarding career plan with the same opportunities for advancement as those without the disability, u less it can be justified under the proportionate means to a legitimate aim argument. There are stated cases that have legal precedent i have researched cases in relation to stammering and dyslexia. The dyslexia case was regarding a police inspector who complained that the nationally recognized and accepted uk standard promotion process was discriminatory against persons with his particular disability, he won the case, resulting in allowances of increased time to complete the exams for those candidates who suffered from dyslexia of similar disabilities.

 

it may be that if the criteria of the role particularly discriminates against those with aspergers or similar communication problems for safety, or other reasons such as risk of litigation from patients etc then this should be recorded in a equality impact assessment as direct discrimination on the grounds that it is proportionate means of achieving a legitimate aim. That aim being safety or adverse risk to the organisation.

 

if there is no such equality impact assessment then the friend should ask for one asap, my experience of public sector are that they are simply quite clueless with these issues and probably wont have one.

they would have had advice from a hr rep, most probably panicked when they realised there was a chance of litigation against them and without thinking about any consequence or damage to the career of your friend, instead i guess they immediately removed your friend from front facing work under the pretence of capability or similar BS with no real risk assessment of his/her needs, abilities or previous work history. They would not have considered, researched via expert opinion or generally had any idea of what aspergers in the friends individual case would have actually resulted . Has any such assessment been carried out?

 

i will try and find the police case on dyslexia as it is quite interesting.

 

i am in and out of the forum at the moment due to my own ET and battle ongoing for past 12 months and i am also quite ill as a result of bullying by my managers.

 

it seems that rather than dealing with your friend with thought, care and searching for ways to help the friend remain in role, instead they kneejerked and sent him/her to Coventry. A very common occurrence in public sector according to my union solicitors.

 

I remember this case well from my law degree

 

http://www.bailii.org/uk/cases/UKEAT/2007/0635_06_2307.html

[prishan]

Hi thank you all.

 

I was away in te EAT last couple of days to suport my friend.

 

On the first day, the judge apeared to be agreeeing with my friends submission and he was bashing the respondent's counsel. On the second, he turned around to 180 degree. We were simply confused. when my friend wanted make his legal submission he was not allowed. He said no need to show case laws. It seems he quite now agrees with the ET that no reasonable adjustment was possible since my frined did not accept the down grading. My friend argued theres no clause in the contract that they can downgrade him witout following a contractual procedure. He wondered how can a employer use objective justification for a non disability factor which should be addresssed through disciplinary course.

 

we got wait for sometime to see EAT's decision on point of law.

 

Cheers all

 

Judgment is preserved.

[prishan]

@becky2585 thanks a lot for finding the case ...really appreciate your help..kind regards prishan

[phaitun]

Hey no worries

[prishan]

@ Phaitun. yeah. Thanks. Just couple of more...

we will of course ask for this equality impact assessmnet. Does it mean impact of his disability on the work he requires to do?

what was this about previous version? what exactly you meant? do you mean any such previous assessment?

 

my friend has been diagnosed with having a life long Asperger's Syndrome, although without knowing that he reached the top of the ladder of his career, but he had no complaints from his patients as reegard his communication difficulties, if any at all came from his staff, colleagues and juniors.

 

Cheers all.

[Emmzzi]

It's possible colleagues will know what he was doing wrong, because they are experts and patients are not.

 

Not trying to be a pessimist, but you seem convinced your friend is totally competent in every single way. That seems unlikely to me if there has been a dismissal. What is the real situation?

[honeybee13]

Prishan, is this the same matter as in your thread from 2011 please? You were talking about Aspergers then.

 

HB

[prishan]

yesss honey bee.it is same matter. we had been from the EAT just day before yesterday.

 

@Emmzie funny enough thye never did say or specify what the complaints, but without giving him the complaints thye sent him for an assessmnet. the assessment raised concern about clinical practice unrelated to his condition and thye recommneded some amount of training. As for the interpersonal issues it later leads to his diagnosis. while on the other hand employer did not fiind any training over a period 3 years. now, employer comes back saying we couldnt find the training so we cant let you work on your post, we can only offer you a down grading to continue in the employment, if you don't take it we will dismiss you, and said we only make any reasonable adjustments in the context of your disability once you accept the demotion. In other words he was demoted not for an impact arising from his disability. He obviously did not accept the demotion and got dismissed.

 

Eventually, claim was on unfair dismissal and disability discrimination. He won a claim for unlawful wage deduction.

 

the latter was cross appealed by the employer and EAT took our DD claim for full hearing. the judgement is reserved.

So we dont know yet which way it will go.

[Emmzzi]

What sort of assessment? I am sorry, I only saw an occupational health assessment mentioned before, was this a different kind?

 

I am finding the story difficult to follow!

[prishan]

occupational health said return him to his post with recomendate adjustment ,it was after the knoledge of disability. There had been a performance assessment that recommended training before the knowledge of disability. Employer did not inquire with the report author about their view on the report in the light of new evidence. Employer ignored their own occupational health recommendation.

[Emmzzi]

So the person that did the initial performance assessment wasn't reconsulted after the occ health report?

 

I don't quite understand yet what adjustments occupational health suggested, if any

 

In addition, occ health are there as a guide but their word is not law.

[prishan]

Yes he was not reconsulted after the occ health report

[Emmzzi]

I still don't understand what reasonable adjustments OH suggested. This is crucial! Can you tell us that please?

 

ETA can we also have the exact wording they used re: your friend's condition also, please.

[prishan]

his natur of disability he suffers from stress...Adjustment was shorter hours in a weeks , breaks(20min) between every 3 to 4 hours duties ,one to one communication and written instruction, mentoring ,supervision.

[prishan]

I still don't understand what reasonable adjustments OH suggested. This is crucial! Can you tell us that please?

 

ETA can we also have the exact wording they used re: your friend's condition also, please.

important thing is it would be the first case under equality act..ET using wrong meaning of proportionate means achieving legitimate aim