As per the Tribunal's 2024 Annual Report, disability discrimination claims are still on the rise, with 90 such claims being filed in 2024, compared with 55 in 2023.
In particular we continue to see more claims under article 6(12) of the Discrimination (Jersey) Law 2013. Article 6(12) prohibits discrimination against a disabled person ("the subject") if a person treats the subject unfavourably because of something arising as a consequence of the subject's disability and that person cannot show that the treatment is a proportionate means of achieving a legitimate aim.
The recent cases of Hogan v Mac Energy Limited [2023] TRE 78 and Dias v Verite Trust Company [2024] TRE 239 provide an insight into factors which may make an Article 6(12) claim more likely to succeed.
In Hogan v Mac Energy, Mr Hogan claimed under Article 6(12) that the decision to terminate his employment was because of something arising from his disability, namely his attendance and timekeeping, which he said arose from his severe depression and anxiety.
The Tribunal held that this was not the case. Mr Hogan's dismissal was not linked to his absence or timekeeping; and he was not dismissed because of something arising from his disability. The Tribunal came to this conclusion after reviewing his payslips and hours worked during the months of his employment. As there had been no unfavourable treatment, the Tribunal did not need to consider the Article 6(12) test any further.
In Dias v Verite Trust Company, Ms Dias also claimed that the decision to terminate her employment was because of something arising from her disability, namely her absences from work, which arose from her fibromyalgia and intractable migraines.
In this case, the Tribunal held that Ms Dias' dismissal was unlawful disability discrimination contrary to Article 6(12). The Tribunal were satisfied that Ms Dias' dismissal was unfavourable treatment and that her migraine absences led to the dismissal. Crucially, the Tribunal found that dismissing Ms Dias was not a proportionate means of achieving a legitimate aim, stating:
"To demonstrate proportionate means an employer must show that it has considered whether some lesser alternative [to dismissal] would suffice. An employer must not move too quickly to dismissal but must consider alternatives and if there are reasonable adjustments that need to be made."
In Ms Dias' case, Vertie failed to follow any of the steps in its own Absence Policy. No medical report was sought. Apart from one discussion in April 2024, there was no further communication with Ms Dias in relation to her absences, until she was dismissed on 31 July 2024. These failings meant that Verite failed to show that the dismissal was a proportionate means of achieving the legitimate aim of business continuity.
It is also noteworthy that the Tribunal stated (when referring to Verite and its witnesses) that "their lack of understanding of their legal obligations towards Ms Dias under the Discrimination Law was surprising for a regulated entity." This highlights the expectations on regulated businesses: regardless of whether they are large or small, they are expected to meet high standards in terms of compliance, including when it comes to understanding and complying with our employment and discrimination laws.
This is welcome clarification on the Article 6(12) test, in terms of what will be considered "a proportionate means of achieving a legitimate aim" and what needs to be demonstrated to satisfy the test. Before making the decision to dismiss, employers must consider alternatives and whether there are any reasonable adjustments that can be made.
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