Disabled employees should not be denied the ability to engage in strategies and mechanisms which help to cope with the effects of their condition simply because they inconvenience other staff. Paul Burton looks at a recent case where disability discrimination was disputed.
Sexual discrimination and football talk
In a 44-page judgment released last month, an Employment Tribunal dismissed a claim that an employer discriminated against the only female member of its leadership team by talking about football all the time.
Discrimination over football talk in the office
In Liebenberg v DS Smith Packaging Ltd the employee argued that she was regarded as ‘not being one of the lads’ because she could not take part in their sporting discussions over boozy dinners.
The Tribunal did point out that the gender imbalance in the leadership team was ‘unacceptable’ – although that is not the same thing as ‘unlawful’ - but it rejected her claim.
The real reason for her dismissal (with less than two years’ service) was the employer’s genuine concerns with her leadership style. In fact, there was no undue emphasis on football in conversations within the leadership team and the dinners were rather sober affairs with participants generally having about half a bottle of wine each.
Discrimination and corporate activities
The issues raised in the case are real enough, however. Too much emphasis on joining in with corporate social activities can certainly amount to indirect discrimination if these are focussed on the interests of the majority. A ‘laddish’ culture could also help persuade a Tribunal that direct discrimination lay behind a decision on dismissal or promotion. This case may have failed on the facts, but that does not mean that employers can afford to ignore the culture they create.
An employment law specialist's view
The case ultimately failed on its fact pattern and a common issue in discrimination claims. It is not sufficient for a claimant to simply show a difference in treatment and state that it is due to a protected characteristic. This, as the tribunal says in the judgment, would “only indicate the possibility of discrimination”.
Discrimination can be inferred where no other reasonable explanation for the treatment is forthcoming and the Tribunal believes that it played a role in any decision. In this case, the Respondent successfully showed that it had concerns about the Claimant’s leadership style and that the dismissal was not discriminatory.