September 30, 2019

U.K. Employment Law Update: Social Media Discrimination, Impaired Vision and Occupational Health Reports

Was an Employer Liable for an Employee’s Discriminatory Acts on Social Media?

In Forbes v LHR Airport Ltd UKEAT/0174/18/DA, the Employment Appeal Tribunal (EAT) considered whether an employee’s discriminatory acts on social media had occurred “in the course of employment”, in which case her employer would have been liable for them.

Mr Forbes worked as a security officer at London Heathrow Airport (LHR). His colleague, Ms Stevens, posted a racist image on her private Facebook account. Another colleague, who was Facebook friends with Ms Stevens, showed the post to Mr Forbes, who raised an internal complaint of race discrimination. Mr Forbes’ complaint was upheld and Ms Stevens received a final written warning.

Mr Forbes then brought race discrimination claims against LHR in the Employment Tribunal (ET). The ET dismissed the claims due to the fact that Ms Stevens had not posted the racist image “in the course of employment”. Mr Forbes appealed, arguing that, at the time he was shown the post, he was at work.

The EAT dismissed the appeal, holding that Ms Stevens’ discriminatory acts had not occurred “in the course of employment”. The ET had been correct to take into account the fact that Ms Stevens had not been at work when she posted the racist image. The EAT also considered several other relevant factors, including that she had not used work equipment to upload the post, her Facebook account was private and the image had made no reference to the workplace. As such, LHR was not liable for Ms Stevens’ discriminatory acts.

This decision highlights the importance for employers to have in place robust and comprehensive social media policies which clearly set out the type of conduct which will not be tolerated in the workplace, online or offline.

Was Impaired Vision a Disability When Corrected by Contact Lenses?

In Mart v Assessment Services Inc. UKEATS/0032/18/SS, the Employment Appeal Tribunal (EAT) considered whether an employee’s visual impairment was a disability for the purposes of U.K. anti-discrimination legislation.

Mrs Mart claimed that she had been discriminated against because of her diplopia (double vision). To correct her condition, Mrs Mart wore special contact lenses which she said restricted her peripheral vision, were cosmetically unattractive, and caused her anxiety and depression. Whilst these side effects were discussed in the litigation, Mrs Mart’s legal case for disability discrimination was based only on her double vision.

The EAT found that Mrs Mart’s double vision was not a disability because U.K. anti-discrimination legislation expressly provides that any visual impairment that is correctable by glasses or contact lenses is not a disability. As a matter of fact, the contact lenses had corrected her double vision and it was irrelevant that this came “at a cost”. However, the EAT added that the issue of whether the impairment was “correctable” by glasses or contact lenses should be considered on a case-by-case basis and, in this context, it was appropriate to consider any side-effects that were such as to make the use of glasses or lenses “unacceptable or unworkable”, such as eye discomfort or infections. However, there was no evidence in the case which suggested that there were such side-effects.

While this decision will provide some comfort to employers, it is important to note such cases are highly fact-sensitive and the outcome here may well have been very different had Mrs Mart expressly relied on her anxiety, depression or facial disfigurement as part of her claim.

Disability: How Much Can Occupational Health Reports Be Relied On?

In Kelly v Royal Mail Group UKEAT/0262/18/RN, the Employment Appeal Tribunal (EAT) considered the extent to which employers can rely on occupational health (OH) reports when assessing whether an employee’s condition is a disability for the purposes of U.K. anti-discrimination legislation.

Mr Kelly was employed by Royal Mail as a postal worker. After several absences for surgery relating to carpal tunnel syndrome (a condition affecting the wrist nerves), he reached the final stage of Royal Mail’s attendance policy and was dismissed. Royal Mail had obtained reports from four different OH professionals who all concluded that Mr Kelly had no disability. Mr Kelly brought a number of claims, including for disability discrimination.

The Employment Tribunal (ET) dismissed Mr Kelly’s claim for disability discrimination. It found that Royal Mail had no actual or constructive knowledge of Mr Kelly’s disability, based on the “unanimous and unambiguous” conclusions of the OH professionals on this issue. Mr Kelly appealed the ET’s findings, arguing that Royal Mail had simply “rubber stamped” the OH reports, without making sufficient enquiries into his condition.

The EAT agreed with the ET. The OH reports were clear on the issue of disability and they had been actively considered by Royal Mail. Furthermore, no evidence had been put forward by Mr Kelly that his condition was a disability. In the circumstances, Royal Mail had not simply “rubber stamped” the OH reports and did not have knowledge of Mr Kelly’s disability.

While this case is a good outcome for employers, such cases turn on their facts and therefore employers should always exercise independent judgement and make reasonable enquiries into whether an employee’s condition is a “disability”.

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