Discrimination – compensation: A decision to award life-long financial losses to a claimant who developed symptoms of PTSD, depression and paranoia following sexual orientation discrimination at work has been upheld by the EAT. Although career-long losses are rare, the medical evidence supported a life-long impact on the claimant’s health and ability to work. However, the tribunal was criticised for failing to properly take into account the possibility of the claimant’s career being cut short for other reasons and to apply an appropriate discount for this. The claimant was also awarded £41,000 for injury to feelings, £15,000 for aggravated damages, plus a 20 per cent uplift for the employer failing to apply the Acas Code, equalling an overall award in the region of £2 million. Although the employer’s appeal over the extent of the discount and uplift were successful and these issues have been remitted to the tribunal, this case acts as a stark reminder that, as damages for discrimination are uncapped, lengthy campaigns of discrimination and harassment that are not handled effectively by employers can result in enormous compensatory awards being made in favour of the employee. [Secretary of State for Justice v. Plaistow]

Discrimination – religion and belief: The European Court has held that provided any rule or policy which seeks to ban workers wearing any visible signs of a political, religious or philosophical belief is not directly discriminatory if applied to all staff generally, and that any indirectly discriminatory effect is capable of justification by employers that have a genuine business need to maintain neutrality on political, religious and philosophical beliefs. This decision is not binding in the UK, although the domestic courts and tribunal may nevertheless have regard to it. [IX v. WABE eV; MH Müller Handels GmbH v. MJ]

Discrimination – burden of proof: The Supreme Court has held that despite a change in the language between historic discrimination legislation and the Equality Act 2010, there has been no substantial change in the law on the burden of proof in discrimination cases. It remains necessary for the complainant to establish, on the balance of probabilities, facts from which unlawful discrimination can be inferred. [Royal Mail v. Efobi]

Dismissal on medical grounds: A recent EAT decision acts as a helpful reminder that employers looking to dismiss employees on medical capability grounds should ensure that there is an up to date understanding of the individual’s medical condition and the prognosis at the time of the decision to dismiss, particularly in cases where the employee is not absent on long sick leave. In the present case, the claimant’s condition (which was a ‘disability’ for the purposes of the Equality Act 2010) necessitated periodic absence from work, and she was dismissed based on medical evidence and the lack of further adjustments to be made, and because her absence levels were considered unpredictable in nature and of an unacceptable level. Although the employment tribunal dismissed her claims of unfair dismissal and discrimination arising from disability, the EAT was critical of the approach taken by the tribunal in a number of respects: the occupational health and medical evidence relied upon were from six and 12 months prior to her dismissal respectively, and the tribunal had made an error in allowing post-dismissal medical reports as evidence; the claimant was in work at the time of the decision to dismiss and throughout the appeal process, and prior to dismissal had not been absent for a few months; and a change in her medical care meant her prognosis was improving. The claims have been remitted to a new tribunal. [Brightman v. TIAA]

Dismissal on reputational grounds: The Scottish Court of Session has upheld an employer’s decision to dismiss an employee who was charged, but never prosecuted, for possessing indecent images of children on his home computer. While there was no evidence of misconduct, his position as a teacher meant that the employer’s child protection concerns and responsibilities provided a rationale for dismissal for ‘some other substantial reason’ (SOSR) in order to safeguard their reputation. SOSR dismissals are not always straightforward, but in the right circumstances can be fairly achieved. This case also highlights the importance of carefully considering the reason for dismissal and being consistent, as the disciplinary process inferred that the reason for action and potential dismissal was misconduct, but the claimant was ultimately dismissed for SOSR. Although not detrimental to the employer’s defence of this case, it may be in other circumstances. [L v. K]

Harassment: Correcting an anomaly in the legislation, and overturning previous case law, the EAT has held that constructive unfair dismissal is, in principle, capable of constituting an act of harassment. This means that where an employee resigns in response to conduct which includes unlawful harassment, the associated constructive unfair dismissal can itself be “unwanted conduct” for the purposes of a harassment claim under the Equality Act 2010. The decision brings clarity, and creates consistency with the other types of discrimination claim. [Driscoll v. V&P Global]

Whistleblowing: The EAT has held that it was not necessary to consider the motivations of anyone other than the decision-maker in circumstances where there had been a process designed to get rid of the claimant for making protected disclosures. Although several people were involved in a process that was described as “grossly unfair”, the dismissing officer was not an innocent decision-maker who had been duped by others, and so it was not inappropriate to only consider his thought process. [University Hospitals North Tees & Hartlepool NHS FT v. Fairhall]