MOrsel: Indirect discrimination in the Jersey tribunal
28 August 2020
Jersey's Employment and Discrimination Tribunal (the Tribunal) has recently upheld a disability discrimination claim along with related dismissal and pay claims. This article considers the key points employers can take from the judgment.
In Jamie Price v Faulkner Fisheries (Markets) Limited (Price), the Tribunal considered a range of employment claims, including indirect discrimination, unfair dismissal and failure to make reasonable adjustments. Aside from the reasonable adjustments complaint, which was struck out, the claims were upheld and the employer is liable to pay compensation to the successful employee.
At first glance, the judgment in Price may serve only as a reminder that the new duty to make reasonable adjustments to physical premises is taking effect from 1 September 2020, as part of a phased implementation of the disability discrimination regulations that passed into law in 2018. However, the issues in this case are instructive and worth considering in their own right.
The facts of Price concerned an employee who worked as a fishmonger and manager of a market shop operated by a local family business.
The claims arose from the circumstances in which the employee's employment came to an end: in short, a dispute between the employee and an owner of the business about the tasks the employee was routinely asked to do led ultimately to the termination of his employment. It was unclear whether termination was effected by the employee's resignation, by dismissal by the employer, or by "résolution unilatérale" (in other words, automatically as a result of the conduct of the employee).
The Tribunal found that the employee had resigned during the course of a heated telephone call with the owner, but then had been dismissed during (i.e. before the end of) his notice period. That dismissal, seemingly, had come about when the owner placed a notice in the shop that the shop was closed until further notice, withheld the shop keys from the employee so he was unable to start his normal working day, and failed to engage with the employee's efforts to clarify his employment status.
The Tribunal also found that the employee was disabled within the meaning of the Discrimination (Jersey) Law 2013 (the Law). Asked to consider whether the employee had suffered indirect discrimination in relation to his disability, the Tribunal found that the employer (like other fishmonger businesses) operated a long-standing practice of requiring employees to stand throughout the working day, without short breaks. That practice put this employee at a particular disadvantage due to the nature of his disability, and amounted to indirect discrimination (although notably the employer did not seek to argue that the practice was justified, as they could have done under the Law).
The employee's separate claim for failure to make reasonable adjustments, which arose from allegations that he had requested short breaks to alleviate the effects of his disability, was struck out on the basis that it was submitted three weeks outside of the Tribunal's time limit.
The number of disability discrimination cases which have reached a full hearing in Jersey is still relatively low, so this judgment makes interesting reading. In our view, the key points for employers at this stage are as follows:
The bar an employee must meet for disability is not a high one, and will be met if an impairment has the potential to cause an adverse effect on the employee in the workplace and is likely to last for at least six months or more – that point had already been established by the Tribunal in the earlier case of Genda but is now further confirmed;
Disability discrimination claims will be brought and do succeed – indirect discrimination claims are notoriously difficult both to bring and defend because they focus on the disproportionate impact of an apparently even-handed rule, but Price shows that disability in particular requires employers to look closely at the specific circumstances of an impairment and it will not be sufficient to rely on an argument that employees are treated equally;
On the other hand, these are still relatively low value claims – discrimination claims in Jersey are capped at £10,000 inclusive of financial loss (although this cap will be applied to each of a claimant's successful claims rather than their overall compensation) and in Price the employee was awarded only £1,000 for his successful complaint of indirect discrimination.
Finally, perhaps to the disappointment of Jersey's employment lawyers, the Tribunal went out of its way in Price to say that the law of résolution will only rarely apply in the employment context – the employer who argues résolution unilatérale as justification for treating the employment relationship as simply at an end will most likely risk a finding of unfair dismissal.
To discuss this judgment or any of the issues discussed in this note, get in touch with your usual contact in the Mourant employment team.