• Robert Spicer

Disability Discrimination: Sample Of New Publication

4.055 TIME LIMIT Continuing act Case Novak v Phones 4U Ltd [2013] Eq LR 349, EAT Statute reference Disability Discrimination Act 1995 Facts N complained of disability discrimination following comments posted on Facebook by workmates. The issue was whether two sets of postings, with a gap of 7 weeks between, were a continuing act. The ET found that the complaint was out of time. Although the second posting was linked to the first, it did not involve the same individuals and the subject matter was different. N appealed to the EAT. Decision The appeal was allowed. N had a good arguable case that the events complained of were a continuing act.

4.056 TIME LIMIT Continuing act Case XX v UKBA UKEAT/0546/11/DM brought another claim which was also dismissed on the basis that the tribunal had already adjudicated that he was not disabled. He brought other claims in 2010. The tribunal ruled at a pre-hearing review that it had no jurisdiction because there was no continuing act and they were out of time, and the principles of issue estoppel applied. XX appealed. Decision 1. The appeal was upheld. 2. It was arguable that there was a continuing act and the matter should go to a full hearing. 3. Issue estoppel did not apply because XX’s disability status had changed since 2005.

4.057 VICTIMISATION Claim against fellow employee Case Barlow v Stone [2012] IRLR 898, EAT Statute reference Disability Discrimination Act 1995, ss. 4, 17A, 57, 58 Facts B complained that S, a fellow employee, had colluded with a director of his employing company to make a false complaint to the police about him, motivated by malicious intent resulting from the fact that B had lodged a tribunal claim alleging disability discrimination. The ET ruled that it did not have jurisdiction because the fellow employee was not an employer or a potential employer. B appealed to the EAT. Decision 1. The appeal was allowed. 2. Victimisation was a form of discrimination for the purposes of Part II of the 1995 Acr. 3. The allegations in B’s claim would have amounted to a viable claim of unlawful discrimination against the employing company.

4.058 VOLUNTARY WORKERS No contract of employment Case X v Mid Sussex Citizens Advice Bureau [2011] EWCA Civ 28 Statute reference Disability Discrimination Act 1995, Pt II, s.4 Facts X was disabled. She worked as a volunteer for MSCAB. Her agreement with her employer was described as having a binding effect in honour only and was not a contract of employment. X was given training for nine months and then carried out a wide range of advice work. She was asked to stop attending as a volunteer and she complained of disability discrimination. Her complaint was rejected by the employment tribunal and the EAT. She appealed further to the Court of Appeal. On behalf of X, it was argued that her voluntary position was a stepping stone to employment and was an arrangement for the purposes of the 1995 Act. It was also argued that the voluntary post was a form of vocational training. Decision 1. The appeal would be dismissed. 2. The aim of the arrangement was to provide advisers and not to create potential employees. 3. Vocational training involved training for a job. MSCAB had not intended to do this.

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