Chris Brunt is a Gibraltar employment lawyer, a Barrister and Acting Solicitor who will consider all discrimination cases on a “no win no fee“ basis.
Introduction – First an explanation as to how English High Court decisions (or above) can affect Gibraltar Employment decisions.
I thought it will be useful at the outset of my blog posts on Discrimination Claims to discuss how English common law can affect decisions made in the Gibraltar Supreme Court or Employment Tribunal. This principle of course extends to the application of all Gibraltar law.
While Gibraltar legislation trumps English legislation, it is often the case that Gibraltar legislators choose to replicate English law into Gibraltarian law. It is also the case that English common law (Case law decided by judges) is also the law of Gibraltar, (See Gibraltar’s English Law Application Act) to the extent that it is applicable to the circumstances of Gibraltar.
This means that where English legislation is identical, or to practical effect the same as Gibraltar legislation, then English common law (English case law) will not only determine legal interpretation (or disputes) that arise from the English legislation but will also assist when applying our own law here in Gibraltar.
Disability Discrimination
One such case All Answers Limited v W and Another [2021] EWCA Civ 606, a recent English Court of Appeal decision where the Court of Appeal had to decide how Section 6 and Schedule 1 of their own Equality Act 2010, should be understood and applied by an English Employment Tribunal. The relevant, Gibraltar legislation which mirrors the English legislation under consideration by the English Court of Appeal can be found in section 3 and Schedule 1 of our own Equal Opportunities Act 2006. [the Act].
It is the case that the finding of the Court of Appeal in All Answers Limited v W and Another will affect the way the Gibraltar Employment Tribunals interpret our own Act.
It is right to say however that All Answers Limited v W and Another was decided on the facts as presented to the Employment Tribunal in England, and the appeal highlighted the error of law that the Tribunal below fell into. In this instance, the Court of Appeal simply re-affirmed an earlier decision of the Court in McDougall v Richmond Adult Community College, [2008] EWCA Civ 4.
The case concerned two employees, Mr W and Ms R. (the Claimants). Both were claiming that the employer subjected them to disability discrimination on the 21st and 22nd of August 2018.
In summary, a person discriminates against another person if:
(1) he treats that other person less favourably because of a protected characteristic (which includes disability) or
(2) he treats the other person unfavourably because of something arising in consequence of that other person’s disability and which he cannot show is a proportionate means of achieving a legitimate aim.
The employee has to show that there has been a substantial impact on them and that their impairments had lasted or were likely to last at least 12 months.
The employer in All Answers Limited v W and Another took issue with the employees’ suggestion that the substantial impact on them of their impairments had lasted or was likely to last at least 12 months by August 2018. There was medical evidence provided that the employees were suffering from depression and anxiety disorders from a date before and after the alleged discriminatory event in August 2018, and the Employment Tribunal found that the employees were disabled, but did not assess the position at the date of the alleged discriminatory acts on the 21st and 22nd August 2018, the dates of the alleged discriminatory acts.
The employer appealed to the Employment Appeals Tribunal (EAT), which accepted that the employment tribunal had not focused on the date of the relevant act when deciding whether the effect of the impairment was long-term, i.e. was likely as at that date to last for 12 months. Nonetheless, the EAT inferred, it seems, that the employment tribunal had considered that question. The EAT disallowed the employer’s appeal.
The employer appealed to the Court of Appeal, who stated that:
“The question, therefore, is whether, as at the time of the alleged discriminatory acts, the effect of an impairment is likely to last at least 12 months. That is to be assessed by reference to the facts and circumstances existing at the date of the alleged discriminatory acts. A tribunal is making an assessment, or prediction, as at the date of the alleged discrimination, as to whether the effect of impairment was likely to last at least 12 months from that date. The tribunal is not entitled to have regard to events occurring after the date of the alleged discrimination to determine whether the effect did (or did not) last for 12 months” All Answers Limited v W and Another: Paragraph 26
The employer’s appeal to the Court of Appeal was allowed and its decision was re-affirmed: McDougall v Richmond Adult Community College. Holding that the question to be determined is whether the effect of the impairment has lasted or is likely to last at least 12 months as at the time of the alleged discriminatory acts. It must be assessed by reference to the facts and circumstances existing at the date of the alleged acts in this case on the 21st and 22nd of August 2018.
From a look at the relevant Gibraltar legislation which mirrored the English legislation. The decision in McDougall v Richmond Adult Community College is confirmed that a successful claim for disability discrimination will require the employee to show that a disability (a physical or mental impairment) has to be assessed as lasting at least 12 months from the date of the alleged discriminatory act and not measured from an event before or after this time.
Gibraltar’s Equal Opportunity Act 2006
Section 3.(3)(a) In this Act– “disability”–
- means a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities;
- is further defined in Part I of Schedule 1…..
Schedule 1 of the Gibraltar Act sets out:
2.(1) The effect of an impairment is a long-term effect if–
(a) it has lasted at least 12 months;
(b) the period for which it lasts is likely to be at least 12 months; or
(c) ………………..
Summary
For a successful disability discrimination claim, one element as described in section 2. (1) (b) of Schedule 1 of the Gibraltar Equal Opportunities Act 2006 is that the employee will have to show is that any impairment or disability at the time of the discriminatory act alleged is likely to last at least 12 months.
Please see further posts which will discuss all the other elements that an employee will have to show to successfully bring a claim for disability discrimination. There is no financial cap on awards for discrimination.
Chris is an Employment Law Barrister and Acting Solicitor of the Supreme Court of Gibraltar who specialises in Employment Law.
If you are an employee or an employer and want advice on how to bring or reduce your risks of discrimination claims, please contact me at Phillips Barristers and Solicitors at 292 Main Street, Gibraltar, GX11 1AA. Tel (+350) 200 73900, or email me at chris.brunt@phillips.gi
Contact me for a free 30-minute consultation at Phillips Barristers & Solicitors, 292 Main Street, Gibraltar, GX11 1AA, for advice to employers on reducing your businesses’ exposure to an unfair dismissal claim – Or, if you are an employee to evaluate your prospects for a claim for unfair dismissal?
All Employee cases are considered on a “no win no fee” basis.
Disclaimer
All opinions are my own and are provided for information only and do not constitute legal advice. Please note that the information and any commentary on Gibraltar law contained in this article are provided free of charge for information purposes only. Every reasonable effort is made to make the information and commentary accurate and up to date, but I do not accept responsibility for its accuracy and or for any consequences of relying on it. The information and commentary do not, and are not intended to, amount to legal advice to any person on a specific case or matter. You are strongly advised to obtain specific, personal legal advice about your case or matter and not to rely on the information or comments on this site https://www.employmentlawgibraltar.com/
