Case law updates

Disabled and vulnerable witnesses: A dyslexic claimant will have her claim reheard by a fresh employment tribunal (ET) after the Employment Appeal Tribunal (EAT) deemed her original hearing unfair because the panel failed to give any consideration to the Equal Treatment Bench Book (ETBB) or Presidential Guidance on vulnerable witnesses when she was experiencing difficulties during the final hearing. The ET concluded that the claimant’s inconsistency during the hearing was down to performance and exaggeration which undermined her credibility as a witness, rather than referring to the ETBB and guidance and recommendations on understanding and managing dyslexic witnesses. Although intended for use by the tribunal, the ETBB is also a useful reference document for employers, particularly if handling issues involving disabled or vulnerable individuals. The document also covers other protected characteristics. (Habib v. Dave Wheelan Sports Ltd)

Gender reassignment discrimination and the “all reasonable steps” defence: Although the claimant, a transwoman, lost her claim, the ET has ruled that the use of a gendered swearword may be sufficient to amount to gender reassignment discrimination. In this case, the claimant alleged discrimination when she was called a “w*nker” by a colleague. The ET concluded that the alleged incident had not in fact occurred, but found that, if it had, the term was not gender neutral and tended to be used towards men. The ET also considered the extent to which the employer had taken “all reasonable steps” to prevent discrimination. While finding it had taken some steps, the ET also found that a number of additional steps would be expected, such as regularly reviewing and updating policies (including compliance with the EHRC employment statutory code of practice), ensuring it was clear which policies related to whom (the claimant was an agency worker), focusing on equality and inclusion, ensuring policies were both readily accessible and understood, having employee representative groups, and raising awareness of equal opportunities both generally and in respect of transgender issues. Although only an ET decision (and so not binding), this is a helpful judgment for employers navigating transgender issues in the workplace. It also acts as a useful reminder that employers should not be complacent about their role in preventing discrimination in the workplace in respect of all protected characteristics, with ETs expecting proactivity around policies, training and awareness. (Fischer v. London United Busways Ltd). Read more on our Employment Law Watch blog.

Pension loss: Calculating pension loss for compensation purposes is not straightforward, particularly when career-long losses are being claimed, especially as there is limited guidance or judicial steer on the issue. However, following a remedy hearing dealing specifically with career-long losses for a defined contribution scheme, we now have some clarification that it is appropriate to use the Ogden tables (numbers 3-18). These actuarial tables are used in personal injury claims and take into account mortality rates and the benefit of accelerated receipt from a lump sum. (Jhuti v. Royal Mail Group)

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