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 works for the respondent in relation to the enforcement of parking regulations. He is a Polish national. During the pandemic, the claimant’s father died in Poland. The respondent had policies that staff were responsible for ensuring that their authorised leave factored in any period of quarantine and that staff must return on the pre-authorised date.
The claimant travelled to Poland following his father’s death to arrange and attend the funeral as well as deal with his father’s affairs. The claimant had to unexpectedly quarantine on his arrival into Poland and then quarantine upon his return to the UK. There was a refusal to grant an extension to his leave. This meant he had overstayed his leave and a disciplinary process took place where he was given a final written warning. The claimant brought a claim arising from this decision citing race discrimination.
Outcome:
The Tribunal, at first instance, found that the respondent’s policies indirectly discriminated against those, like the claimant, who were not British, and the policy was not justified. The claimant was also found to be successful in relation to harassment as he received a series of emails connected to the trip in which his line manager threatened him repeatedly with disciplinary action if he overstayed his leave.
The respondent appealed against those findings. In terms of the appeal relating to harassment it was rejected. The repeated threats had been influenced by the line manager’s view of the claimant’s conduct relating to two previous episodes of leave and that the negative view was influenced by the claimant’s race. However, on the decision that the policy was indirectly discriminatory the appeal was upheld. The EAT found that the Tribunal erred in terms of determining whether the policy was proportionate. This was due to the fact that the Tribunal had focused too greatly on the impact in this individual case rather than looking at a more general group impact. The case was remitted back to the Tribunal for decision relating to the policy.
Practical Guidance for Employers:
This decision provides two key learning points. When it comes to indirect discrimination relating to a policy there is a need to ensure that it is looked at from the perspective of a general group rather than looking at specific cases or individuals. Secondly, when it comes to the harassment point – having a negative view based upon an individual’s nationality which then leads to greater threats being made when it comes to leave then that would amount to harassment.
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