MOrsel: Jersey disability discrimination update – Priaulx v Valla Limited
22 February 2021
Donald Rumsfeld infamously said: "there are known unknowns; that is to say we know there are some things we do not know. But there are also unknown unknowns—the ones we don't know we don't know."
A recent judgment from the Jersey Employment and Discrimination Tribunal is a clear warning to local businesses that when it comes to the question of disability, there should be no unknowns, whether known or otherwise.
Upholding claims for indirect disability discrimination (failure to make reasonable adjustments) direct disability discrimination (discrimination arising from disability) and unfair dismissal, the Tribunal went on to award compensation just shy of £30,000.
The case appears to have had a deeply contested procedural history, but the facts described in the Tribunal judgment are simple.
An employee sustained a back injury at work in June 2017, as a result of which she experienced pain and discomfort in carrying out her duties for her employer, a trust company. In August 2019, following recurring periods of sick leave, the employee was dismissed from her employment. Between May and November 2019, when her employment terminated, the employee's sickness absence was unpaid.
Key to the employer's defense was its position that it did not have knowledge of her disability. Significantly, this position was rejected by the Tribunal. Under the Discrimination (Jersey) Law, an employer may be imputed with knowledge if they knew or could have been reasonably be expected to know that the employee is disabled within the meaning of the legislation.
In the Tribunal's view, it should have been obvious to the employer that this employee met the definition of disability on production of an investigation report in July 2019, shortly before a capability meeting took place. In particular, the Tribunal ruled that it was "nonsensical" for the employer to say there was insufficient evidence to conclude that the employee was disabled.
Ultimately, the Tribunal found that the employer had failed to discharge its duty to make reasonable adjustments in respect of disability before deciding to dismiss the employee (evidently the provision of a stand-up desk would have been a simple and effective measure to mitigate the effects of the employee's back condition).
The Tribunal further held that by not paying the employee during the period of sickness absence leading up to her dismissal, and by dismissing her, the employee had subjected her to 'unfavourable treatment' which was causally connected to her disability. As a result of those findings, the dismissal itself was found to have been automatically unfair.
The judgment is well worth consideration by businesses operating in Jersey. Although not the first judgment dealing with disability discrimination since the introduction of protection in 2018, it is probably the most significant.
The Tribunal emphasised that it did not consider the employer to have acted maliciously, but that (together with its advisors) the employer had failed to understand the effect or meaning of the law relating to disability. A salutary reminder, perhaps, about the perils of unknowns.
The judgment is available to view here.