Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The claimant commenced employment with the respondent in 2016 as an Accounts Manager. A large amount of the respondent’s business was in German but it was accompanied by English translations. In 2020 the website was changed only to German.
The claimant stated this disadvantaged him as he was based in the United Kingdom and he was English speaking meaning that he could no longer use the site. The claimant applied for promotion in 2020, which had only been advertised in German. The claimant was informed he would not be able to take on the role as he did not speak German. This led to the claims of indirect discrimination on the basis of race.
Outcome:
At first instance, the Tribunal struck out the claims giving some limited reasons relating to indirect discrimination and the defence of justification. The claimant argued that the Tribunal had erred as the complaints should have gone to a merits hearing in front of a full panel.
The EAT allowed the appeal. The judgment from the Tribunal did not include a detailed analysis of the discriminatory effect of the provision, criterion or practice namely the move to solely operating in German. The EAT cited that the claimant had passed the initial recruitment exercise considering that therewas a sufficient amount of English used in the workplace and that he could deal with meetings in Germany. The move solely to German was such that it could make it impossible for the claimant to continue working and so the discriminatory effect could be ‘extreme’. As a result, there ought to have been an analysis of the discriminatory effect of the policy rather than striking it out with only a superficial examination of the policy. Indeed, the justification defence had only been given a superficial analysis too. As a result, the appeal was allowed with the case being remitted to a differently constituted Tribunal.
Practical Guidance for Employers:
A case relating to the procedure of the Tribunal and whether there should be a full analysis vis-à-vis indirect discrimination when it comes to having a full hearing. The EAT is noting here that the effect on the individual employee should be considered alongside the actual policy that is being implemented. This allowed for the appeal and the case to be remitted.
The full case can be viewed here:
https://assets.publishing.service.gov.uk/media/65c4aed6b179120010ba68a2/Mr_J_Logo_v_Payone_Gmbh_and_others__2024__EAT_9.pdf
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