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Employment: Losing one's job

This page gives an overview of how the Equality Act and other legislation can apply to losing one's job. This may be through being dismissed or being made redundant. If the employee resigns, there may also be legal rights, particularly if it amounts to 'constructive dismissal'.

Summary

There is a separate page on Disciplinary, grievance and other procedures.

Dismissal

Where someone has been dismissed and disability is involved, they will commonly claim both under the Equality Act 2010 and for unfair dismissal.

Equality Act 2010

Where a stammer contributed to a dismissal, there may be unlawful discrimination under the Equality Act. This will depend on the facts. For example, sometimes a question will be whether the dismissal was objectively justified.

Capability

The most obvious type of dismissal where stammering may be relevant is if the employer considers the employee is not performing well enough in the job.

Assuming this is genuinely the reason (eg the employee is not just being picked on because of the stammer), relevant issues under the Equality Act may include:

Probably not likely to arise with stammering: but often in disability cases the employee has been off work a long time and it is unclear whether and when s/he will be able to return. Issues here include whether it is justified to dismiss them, and whether any appropriate reasonable adjustments have been made to facilitate a return to work, perhaps a phased return.

Misconduct

Dismissal for misconduct where stammering is relevant is likely to be rare. However, an example is the Asda case below:

Stuttering Asda worker 'sacked because his desperate efforts to speak were interpreted as aggressive behaviour' (link to dailymail.co.uk), 2/5/12.
An ongoing case. The employer was not willing to concede the stammer was a disability. However, the tribunal seems to have decided it was a disability (though this is not totally clear from the report), and the case will go on for a full hearing.

Issues here would probably be whether there is direct discrimination or 'discrimination arising from disability' - see Discrimination.

Formal procedures

Dismissal will often be preceeded by a formal disciplinary or capability procedure. The Equality Act is important here in ensuring that the staff member who stammers has the opportunity to participate fully and have their say. See Disciplinary, grievance and other procedures.

Redundancy

See below Redundancy.

Unfair dismissal

If the alleged discrimination relates to dismissal (or if the person has resigned, see next paragraph), an unfair dismissal claim is often made as well as a Equality Act claim. For more on unfair dismissal see: 'Dismissal' on adviceguide.org.uk

'Dismissal' includes:

An employee is dismissed for a reason related to his stammer. There may be an unfair dismissal claim as well as a possible Equality Act claim.

It is also possible of course to claim unfair dismissal without claiming under the Equality Act. Subject to some exceptions, you need to have worked for the employer for at least a year in order to claim 'unfair dismissal' (two years if you started on or after 6th April 2012). This is known as the 'qualifying period'.

In the Bennett case, unfair dismissal alone was claimed. A supervisor making fun of the employee's stammer was only a contributory factor in the claim.

'Unfair dismissal' is a distinct claim, under legislation separate from the Equality Act. Some differences between unfair dismissal and Equality Act claims:

Resignation may be 'constructive dismissal'

Constructive dismissal is where the employee decided to leave but was entitled to terminate the contract because of the employer's conduct. For more about constructive dismissal, see: 'Constructive dismissal' on direct.gov.uk.

As well as any Equality Act claim, constructive dismissal will involve a breach of contract by the employer, and there will normally be a claim for unfair dismissal (subject to the qualifying period, if applicable).

A woman resigns because harassment related to her stammer makes the workplace intolerable. The employer has failed to take action to address the harassment. As well as an Equality Act claim, she may have a claim for constructive dismissal and unfair dismissal.

Crisp v Iceland Frozen Foods Ltd [2012] EqLR 618, Employment Tribunal.
A conversation between a manager and HR manager making fun of the claimant's disability was accidentally recorded on the answering service of her home telephone. The tribunal considered that any senior manager demonstrating, even inadvertantly, to an employee that they did not consider a disability should be taken seriously was likely to damage the implied term of trust and confidence. This was compounded if, as here, the employee complained about the conduct and the complaint was ignored. The claimant had resigned in response to the treatment. Her claim for unfair dismissal succeeded. (Claims for unlawful discrimination also succeeded.)
Tribunal issues a recommendation against Iceland Frozen Foods (link to didlaw.com), 14/6/12.

Bennett (2002-03), Employment Tribunal
The claimant resigned his job as a parking attendant and successfully claimed to the tribunal for unfair dismissal. The tribunal agreed that because of the employer's conduct the applicant had been constructively dismissed and the dismissal was unfair. A relatively small part of the relevant conduct was that a supervisor had made fun of the claimants stammer.

Alderson v Walkers Snack Foods (2001), Employment Tribunal
A person who stammers was found not to have been constructively dismissed, on the particular facts of the case.

Constructive dismissal is treated as 'dismissal' for the purposes of the Equality Act 2010: s.39(7)(b) EqA.

What if a resignation was not constructive dismissal?

If a resignation is not 'constructive dismissal', an employee can still have Equality Act rights in respect of any discrimination - eg harassment or failure to make reasonable adjustments - which happened during employment (or potentially after leaving).

In this event, though, the three month time limit for a tribunal claim is likely to run from a date before the person left.

Redundancy

Redundancy law generally

Legally redundancy is a type of dismissal. The employee is dismissed because the business's requirements for employees to carry out work of a particular kind are ceasing or diminishing. (The detail of what counts as redundancy is complicated.) Unfair dismissal law and various other provisions, including the right to a redundancy payment and Equality Act 2010, apply to redundancy.

Assuming there is genuine redundancy, issues can include:

Those are issues apart from the Equality Act 2010. For more on redundancy generally: 'Redundancy' on adviceguide.org.uk

Equality Act 2010

How may the Equality Act may be relevant in redundancy?

Primarily, the way the disabled person was selected for redundancy should not be discriminatory. So if a factor in selecting people for redundancy puts the person at a disadvantage for a reason relating to their stammer, this could well be a breach of the Equality Act - unless the selection is reasonable and justified. Potential types of Equality Act claim that may apply here include (but are not limited to) discrimination arising from disability, duty to make reasonable adjustments, and indirect discrimination. See Discrimination.

Furthermore, reasonable adjustments may be appropriate to enable a disabled person to participate fully in any consultation and other procedures, eg in any appeal. See Disciplinary, grievance and other procedures.

Mental Health Care v Biluan, February 2013, Employment Appeal Tribunal.
In selecting employees for redundancy, the employer carried out a competence assessment which failed to take into the opinion of managers who had worked with the relevant employees. Managers found the results 'surprising' and considered they had led to the selection and dismissal of some 'very good workers'. The employer was held liable for unfair dismissal. An additional contributory factor was that the group 'scenario' assessments, carried out without any facilitation, were likely unfairly to favour those employees who had an outgoing personality, and disadvantage those who were 'retiring and thoughtful.'
This was an unfair dismissal case rather than one under the Equality Act. However, it illustrates how unfair dismissal may also be relevant. Furthermore, the tribunal would have examined the assessment still more critically had a disability within the Equality Act been involved, eg to see whether reasonable adjustments had been made.

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Last updated 2nd May 2013