Friday, November 14, 2014

Don't Look It Up On The Internet - If You Are An Employment Tribunal

In a recent Judgment overturning a Norwich Employment Tribunal decision that a Claimant was disabled the Employment Appeal Tribunal has reminded Employment Judges (and lay members) that there role is to adjudicate and not investigate.

In the Courts and Tribunal in this country we generally have an adversarial (the parties fight it out with the Judge as the final decision maker) than an inquisitorial (the Judge investigates with the help of the parties to get to the truth) system.

Mrs Sanders brought a disability discrimination claim against an NHS Trust. A joint expert report was obtained which concluded that her depression was mild and did not have a significant effect on her day to day activities. This would suggest that she was not "disabled" as defined by the Equality Act 2010, which is an essential prerequisite to a Claim for disability discrimination.

During her evidence Mrs Sanders, who was not legally represented, was asked questions by the Employment Judge about the medication she was taking.

After the evidence was completed and legal submissions had been made the Tribunal retired to consider its decision on the issue of disability.

When they returned they informed the parties that they had done their own research on the internet and had found some information on Wikipedia and a couple of other sites which led them to the conclusion that Mrs Sanders had been prescribed the maximum dose of medication. This appears to have contributed to their ultimate conclusion that Mrs Sanders was disabled.

The parties were given time overnight to consider their positions and in the morning the Respondent applied for the panel to recuse itself (i.e. step down) on the basis that they should not have done their own research and it gave the appearance of bias.

The Tribunal declined to go along with this application and following the decision in Mrs Sanders' favour the Trust appealed.

The EAT reminded the Tribunal that whilst it was legitimate to ensure that an unrepresented party was given sufficient assistance and leeway to enable him or her to put across her case, the Tribunal's duty was to decide the case on the evidence that was presented to it. If there were deficiencies in the Claimant's evidence it was not for the Tribunal to plug the gaps through their own research. This is particularly so given the notorious unreliability of information on the internet, especially in respect of medical matters.

By carrying out these investigations the Tribunal had given the impression that it was looking to bolster the Claimant's case. This gave the appearance of bias, and the Tribunal should have acceded to the recusal application.

When a party to an appeal to the EAT alleges bias, the Employment Judge will usually be asked for an affidavit setting out his or her recollection. The EAT reminded the Tribunal that this should set out the facts and not argument, and criticised the defensive nature of the affidavit lodged in this case, from which the Judge appeared to be labouring under the misapprehension that it was appropriate for him to put forward the arguments for rejecting the appeal given that the Claimant was unrepresented.

The appeal was allowed and the case was sent back to the Employment Tribunal to be heard by a fresh panel.  

Friday, November 07, 2014

You Can't Say That!! - Why Not All Irish People Are Alcoholics

The BBC reports that a teacher from County Kerry has been turned down for a job in South Korea because the employer had a policy of not employing Irish people. This was on the grounds of "the alcoholism nature of your kind" (sic.)

Refusing someone employment because of their nationality (whether this was because of an intrinsic dislike of that country or, as here, on the basis of some stereotypical assumption about the characteristics of people from that country) would be unlawful direct race discrimination in this country under the Equality Act 2010.

Rejecting the job applicant in an email which explicitly stated discriminatory reasons like this would be a "slam-dunk" admission of liability.

Most employers who discriminate do not admit this, and may not even be aware that they are guilty of it. As a result English law allows the Tribunal to draw inferences and, if there is evidence from which in the absence of an innocent explanation discrimination could be found, in certain circumstances in effect puts the onus of proof on the employer.

Employers need to have transparent procedures to show that all job applicants are considered on their merits and treated equally.

Incidentally, the Equality Act specifically provides that alcoholism is not a disability so it is not a "protected characteristic" and it is not therefore unlawful to turn someone down for a job  because they actually are an alcoholic - although dismissing an existing employee with a drink problem can result in an Unfair Dismissal Claim if not handled correctly.