Articles

Disability Discrimination by Reference to Employee’s Reasonable Perception

Date: November 18, 2007

Expertise: Employment

In Jenkins v Legoland Windsor Park Ltd EAT/1155/02; NLC 503077401 (3 July 2003) the Employment Appeal Tribunal had to consider whether a disabled employee could be said to have been subjected to a detriment and to have been unlawfully discriminated against in relation to a long service award presented to him by his employer in the form of a personalised model.

FACTS

The applicant had a withered arm which he always carried in a sling. In March 1998 he started working for Legoland and was subsequently appointed an Attractions Team Leader. On 16 March 2001 he attended an award ceremony at which employees who had served 3, 5 or 7 years were to receive different types of trophies to mark their service. Those with 3 years service were to receive a personalised lego model. The model presented to the applicant comprised a male figure in blue attire with his right rather than left arm in a sling, whereas he understood that such models were supposed to depict the ride or attraction on which the recipient worked. The applicant was greatly distressed by receipt of this model, emphasizing as it did the disability which he had tried hard to overcome. Shortly afterwards he was certified off sick by his GP and did not return to work at Legoland. He was sent to a consultant psychiatrist who concluded that he was suffering from “a depressive episode triggered by an insensitive experience at his place of work”.According to a schedule provided by Legoland 58 employees who had completed 3 years service were presented with models at the ceremony. Of those only 3, namely the applicant and 2 HR employees, did not have something in their model which referred to or represented their job in addition to a representation of themselves.

The employment tribunal dismissed the applicant’s complaint that he was treated differently because the personalised model presented to him did not include any work-related feature. The applicant contended that some work feature such as a radio which he was required to carry in performing his duties could have been included in his model. But, that suggestion was rejected by the tribunal to be inapposite and not obviously linked with his work area because it applied to all Team Leaders and would not necessarily relate to him personally. The tribunal accordingly found that if there was a difference in treatment because of a lack of any work-related item in the model given to him, that related not to his disability but to his “workplace and work functions”. It would therefore fall outside the scope of the Disability Discrimination Act and would not constitute less favourable treatment thereunder.On appeal it was argued on behalf of the appellant that he had been subjected to a detriment within section 4(2)(d) of the Act and that the presentation of a long service award was also caught by section 4(2)(b) which was intended to cover fringe benefits of any kind. Relying on the recent House of Lords decision in Shamoon v Chief Constable of the RUC [2003] ICR 337 it was contended that the appellant had a justified and reasonable sense of grievance because he was presented with a model which did not identify him with any work function at all, but simply and inaccurately identified him by his disability. He was naturally sensitive about being treated as a lesser person because of his disability, when the other employees who worked in Attractions with him and who received awards, were clearly identified by their work function. It was argued in particular that the issue had to be considered from the point of view of the victim, as was emphasized by Lord Scott in Shamoon.

DECISION

The Appeal Tribunal (HHJ Reid QC presiding) accepted that it was impossible to see why Mr Jenkins should not have been shown with a team leader’s radio. The only available explanation was that he was shown as he was because he was disabled and an identifiable model could be made by reference to his disability. A person who was not disabled occupying his position would not have been represented simply as a person in blue. The Appeal Tribunal went on to consider the question as to whether the applicant could be said to have been subjected to a detriment and discriminated against by this difference in treatment. It held that this was to be answered by reference to the perception that a reasonable employee would or might take of the treatment accorded to him. In the judgment of the Appeal Tribunal a reasonable employee in Mr Jenkins’ position would or might well take the view that he had been subjected to a detriment by the way in which he was singled out from his colleagues at a substantial presentation ceremony to be identified by a (wrongly characterised) disability. Accordingly, the appeal was allowed, a finding of disability discrimination substituted, and the case was remitted to the employment tribunal for the assessment of compensation.

This decision highlights the importance of considering the question of whether an employee may have been subjected to a detriment through the eyes of the complainant by reference to the perception of a reasonable employee placed in his/her position. That, of course, is also closely related to the question of whether he/she has been accorded less favourable treatment. If the same facts are judged from the point of view of an able-bodied person, they can be perceived very differently.

Daniel Matovu of 2 Temple Gardens, originally instructed through the Bar Pro Bono Unit on referral from Henley CAB, appeared on behalf of the successful Appellant. The Respondent was represented by Richard Leiper instructed by Clifford Chance LLP.

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