An employee succeeded in a disability discrimination case which found that her employer had unfairly dismissed her due to her health issues. The significant damages (£1.1m) reflected the fact that she was dismissed during the Covid pandemic which made finding alternative work nigh on impossible.
Still, the case is a stark reminder that any discrimination (which is where someone is treated less favourably or is put in a less favourable position as a result of a “protected characteristic”, for which see end of this article) and which is found to have resulted in a dismissal, can (and most often does) result in substantial damages – which far exceed the normal statutory cap on unfair dismissal cases (the compensatory element of non-discrimination based unfair dismissal cases is £105,707).
A solicitor at a bank, Gulnaz Raja, was awarded damages by employment Judge Joffe after online bank Starling treated her less favourably due to her health issues. Raja, who suffers with asthma, was advised to work from home throughout the Covid pandemic as she was a high-risk individual. She was dismissed by Starling in March 2020 because the company’s in-house general counsel believed that she was ‘not a Starling person’.
The recent judgement outlined that Raja was dismissed from work during the most challenging period in history, leaving her struggling to find new employment during this time. Raja argued that she was unfairly dismissed by Starling, as they had failed to investigate her allegations of disability discrimination.
Judge Joffe claimed that Raja was ‘doing her best’ during the difficult period and noted that she would have to explain to future employers that she was dismissed from her previous employment due to her health condition, and that this could be a barrier to future employment prospects.
Raja’s claim for disability discrimination succeeded in the employment tribunal. The judge confirmed that Raja’s need to work from home during the pandemic, and other potential health absences, were ‘the material reason for her dismissal’.
Damages were awarded to Raja at the sum of £541,000 for past and future loss of earnings, alongside the additional £658,000 for compensation.
As with any dismissal employers are well reminded that where an employee has worked with them for a period of two years or more then not only do they need a fair reason to dismiss an employee, but they are bound to follow a fair process. It is important to note that the two year period does not apply in cases where an employee believes themselves dismissed by reason of discrimination – the right not to be dismissed for a protected characteristic arises on day one of employment.
The case demonstrates that the dismissal of employees needs to be handled carefully and sensitively taking into account the legal obligations incumbent on employers. And in the case of discrimination, it is worth noting (see below) that discrimination may be found even when the employer believes they have not directly discriminated against a person.
Read on for a more specific explanation of the law.
“Protected characteristics” are set out within the Equality Act 2010 as:
- Gender re-assignment;
- Marriage and Civil Partnerships;
- Religion and Belief
- Sexual Orientation
- Pregnancy and Maternity
- Disability; and
The faces of discrimination
There are four main types of discrimination: direct discrimination; indirect discrimination; harassment, and victimisation.
Direct discrimination arises where, as a result of a protected characteristic, someone is treated less favourably than someone else who does not have that protected characteristic.
For example, if a person is either not employed or is dismissed because of their sex, religion, health, age etc then that person is subject to direct discrimination. There is no defence for direct discrimination except in circumstances where direct discrimination is a proportionate means of achieving a legitimate aim within the business.
Indirect discrimination arises where there is a provision or criteria or practice within a workplace which is applicable to a group of people but where that provision, criteria or practice would have a disproportionate effect on a person with a particular protected characteristic or where it would put an individual at a disadvantage as a result of a protected characteristic.
For example, where a group of people are required to work extended hours, but this has a disproportionate effect on a female who has childcare responsibilities. Again, the only defence for an employer would be where the provision, criteria or practice is necessary and proportionate for the purpose of the business.
It is important that employers look at all available options to them to achieve a legitimate business purpose in order to ensure that individuals are not indirectly discriminated against.
In relation to disability, an employer has a statutory duty to make reasonable adjustments within the workplace to assist an employee or worker to carry out their duties within the business (section 20 of the Equality Act 2010).
In particular, where there is a provision, criteria, practice or physical feature within the premises which puts an individual with a disability at a disadvantage compared to others, then the employer must make reasonable adjustments. This could include installing access ramps, providing larger screens for those with limited visibility, or allowing later starts and earlier finishing times to assist in access to and egress from the property.
As an employer, it is advisable that any reasonable adjustments are reviewed with the employee or worker from time to time. It is also important that such adjustments are made within the recruitment process to ensure that a candidate with a disability is not at a disadvantage.
Harassment under section 26 and section 40 of the Equality Act 2010 is defined as unwanted conduct which is related to a protected characteristic, and which creates an unpleasant environment for the employee or worker to which it relates. There does not need to be a rejection by the employee or worker of that unwanted conduct for it to constitute harassment.
The three types of harassment are general harassment, sexual harassment, and submission to or rejection of sexual harassment. Whilst it is usual that harassment arises through a series of incidents, if an isolated incident is of a more serious nature, then this could on its own amount to harassment.
Victimisation arises where an employee or worker is treated badly by another person within the workplace as a result of that employee or worker making or supporting a complaint under the Equality Act 2010.
For example, where someone has raised a grievance where they feel they have been discriminated against and as a result of raising that grievance, they begin to be treated negatively by others.
Consequences of discrimination
If an employee, a worker, or even a candidate for a potential position within the business feels as though they have been discriminated against as a result of one of the protected characteristics, then they can bring a claim against an employer in the Employment Tribunal.
Unlike unfair dismissal, there is no two year qualifying period in which that person must have been engaged with the business in order to bring a claim, and in fact, discrimination can arise right at the beginning of a recruitment process. Any claim, however, does have to be brought within a three month time limit from the date of the discriminatory act taking place.