Veitch Penny LLP - Exeter | Crediton, Devon

Case

A Jenkins v Legoland Windsor Park Ltd
Employment Appeal Tribunal (03/07/03)

Issues

(1) Disability discrimination
(2) Less favourable treatment
(3) Award

Facts

As a teenager, the Applicant injured his arm following a motorbike accident, and as a result had to permanently wear his arm in a sling. He commenced employment with the Respondent in 1998.

In 2001, a new award ceremony was introduced for employees with 3 years service. Each employee, including the Applicant, was given personalised model trophies to mark their service. The model presented to the Applicant portrayed a man in blue with his arm in a sling. This caused the Applicant great distress as he had tried hard to overcome his disability. His model was the only one showing an unhappy employee, emphasising his disability. In addition, his sling was placed on the wrong arm. Shortly after, the Applicant was signed off sick with depression. He did not return to work.

The Employment Tribunal heard that 58 employees were presented with models. Of that group, only three did not have something in their model that showed them in a work related environment. For example, an employee involved in traffic was presented with a model containing a traffic cone. Accordingly, in dismissing his claim for constructive unfair dismissal and disability discrimination, the Employment Tribunal held that the difference in treatment was not due to his disability, but actually due to his workplace.

The Appellant appealed to the Employment Appeal Tribunal, regarding the decision in respect of his disability discrimination claim. He argued that the act of making and presenting a model highlighting his disability rather than presenting it in a work related environment constituted an act of discrimination.

Decision

The appeal was allowed.

(1) Section 4 (2)(d) of the Disability Discrimination Act 1995 states it is unlawful for an employer to discriminate against a disabled employee by subjecting him to a detriment or dismissing him.

(2) The term “detriment” has to be interpreted widely in line with the judgement in Shamoon –v- Chief Constable of the RUC (2003}.

(3) Detriment was held to have occurred if a reasonable worker would view the treatment, in all the circumstances, to his detriment. The emphasis of the test was to be taken from the perspective of the victim.

Comments

The Employment Appeal Tribunal found that the Appellant had been justified in taking the view that his treatment had been to his detriment in all the circumstances. The model merely identified him by his disability; a fact that he was already sensitive about. The Appeal Tribunal found this was clearly less favourable treatment when compared to the other employees who had models made pertaining to their work. There was no reason why the Appellant’s model could not have also pertained to his work (for example, a radio). A finding of discrimination had to be made, and the matter was remitted to the Tribunal to assess compensation.