In the case of South Gloucestershire Council v Ms Pavandeep Hundal, the Employment Appeal Tribunal (EAT) considered an Employment Tribunal’s (ET) decision on whether Ms Hundal’s contract was terminated for a discriminatory reason.
Ms Hundal started this work on a fixed term contract, but it was expected she would become a permanent employee. There were two colleagues in a similar position but ultimately only two available full-time positions.
Ms Hundal suffered from endometriosis and had related sickness absences. The Council was aware of her health issue and that she was disabled under the definition of the Equality Act 2010 (EqA)
Ms Hundal’s contract was terminated.
The ET made a finding of fact that the “decision to terminate [Ms Hundal’s] contract…was taken solely in relation to her sickness absences”.
ET’s decision
The ET upheld Ms Hundal’s claim for direct disability discrimination.
Appeal
The Council appealed the ET decision on the basis direct disability discrimination does not arise if the reason for the employer’s action is something arising from that disability and not the disability itself.
EAT’s decision
The EAT explained that on the basis of the ET’s finding of fact the claim should have been considered under section 15 of the EqA, which covers discrimination arising from a disability
The EAT noted the ET had considered whether the Council could have objectively justified its decision to terminate Ms Hundal’s contract. The ET had done that even though direct disability discrimination cannot be justified. Objective justification requires an employer’s actions to be a proportionate means of achieving a legitimate aim.
The Council’s stated aim was “the efficient management of the service”.
See paragraph 26 of the EAT’s decision for a full explanation on why the Council’s defence failed. The EAT noted the ET had doubted the Council’s aim was in fact applied by it in practice. By way of example of this, a Mrs Desmond had said in her witness statement that she took the decision to terminate [Ms Hundal’s] contract because the role was no longer available. The EAT noted, “even if the aim was adopted by the [Council], the Employment Tribunal was not persuaded that the termination…was appropriate or necessary to achieve that aim”.
The EAT also explained “if an Employment Tribunal has found that, at the time of the asserted discriminatory treatment, the employer failed to make a reasonable adjustment, justification generally cannot be made out”.
The EAT disposed of the claim on the basis the Council had breached section 15 of the EqA and Ms Hundal had already been compensated following the ET’s decision. Happily, Ms Hundal had found alternative full-time employment.
This blog was written by Ben Lindsay, Solicitor at didlaw.
