Employment Law Speed Read – 24/06/19

Background

The Claimant, Mr Ahmed, qualified as a “Teach First” teacher and was appointed to teach at the Respondent’s, Cardinal Hume Academies, School (the School). Mr Ahmed has dyspraxia, which causes various difficulties including handwriting, as he suffers pain when handwriting and is only able to write for a few minutes at a time.

Mr Ahmed made the School aware of his disability and the difficulty he was having with handwriting. Following a referral to Occupational Health, Mr Ahmed was certified fit for his post but an overall risk assessment was recommended. Concerns were raised about Mr Ahmed’s ability to cope with the demands of the role and at a meeting with the School’s Head Teacher, remarks were made that Mr Ahmed perceived to amount to harassment related to his disability. Following this meeting, Mr Ahmed was suspended so that the School could reflect on the issues further, including what reasonable adjustments would need to be made. Mr Ahmed raised a grievance and later resigned.

Section 26 of the Equality Act 2010 provides that: A person (A) harasses another (B) if A engages in unwanted conduct related to a relevant protected characteristic which has the purpose or effect of either:

• Violating B’s dignity, or
• Creating an intimidating, hostile, degrading, humiliating or offensive environment for B.

In deciding whether conduct shall be regarded as having the effect referred to above, the following must be taken into account:

• The perception of B.
• The other circumstances of the case.
• Whether it is reasonable for the conduct to have that effect.

Employment Tribunal

Mr Ahmed brought claims of disability discrimination, harassment and unfair constructive dismissal and the Employment Tribunal dismissed all of his claims.

The Tribunal considered that the remarks made by the Head Teacher were unwanted, but considered that the Head Teacher was “profoundly concerned” about whether a new and inexperienced teacher, unable to write for more than a minute or two, was able to undertake sole responsibility for 9 different classes. The Tribunal also heard evidence that Mr Ahmed had himself later referred to the meeting as “civil”.

Therefore the Tribunal held that it was not reasonable to hold that the remarks, and Mr Ahmed’s suspension, amounted to harassment.

Employment Appeal Tribunal

Mr Ahmed appealed on the grounds that the Tribunal had taken the wrong approach to harassment by considering whether it was reasonable for the conduct to have the proscribed effect, whereas the Equality Act required each of the factors (perception, circumstances and reasonableness) to be taken into account.

Mr Ahmed also appealed on the grounds that the Tribunal erred in its approach to his claim of direct disability discrimination in that they failed to give effect to their own finding that the reason for his suspension was his disability, namely his difficulty with handwriting.

The Employment Appeal Tribunal dismissed Mr Ahmed’s appeal and held that the Tribunal had applied the correct test as set out in the Court of Appeal case of Pemberton v Inwood, holding that if it was not reasonable for the conduct to be regarded as violating the Claimant’s dignity, or creating an adverse environment for him, then it should not be found to have done so.

The Tribunal did not misapply its own findings, as their finding was that the treatment was because of Mr Ahmed’s difficulties with handwriting, which was the adverse effect of an impairment, not because of his disability itself.

Comment

This case is helpful guidance on the correct test for harassment and also highlights that harassment cases are highly fact specific and reliant upon the evidence that is adduced in the Tribunal.

If you have any questions on the above and how it will affect you, please do not hesitate to get in touch with a member of our employment team.