IPC Media Ltd v Millar
The EAT has dismissed the Employment Tribunal’s decision that a disabled journalist, with a record of absence, was discriminated against for reasons relating to her disability. The decision to dismiss was taken by someone by was not aware of the claimant’s medical history and therefore the dismissal was not discriminatory.
The claimant, Millar, was a features editor on one of IPC Ltd’s magazines, a position which required her to work full time at the London office. Following a series of absences, in 2008, due to her osteoarthritis Millar’s editor and line manager decided she would resume a position as a copy editor which would involve working three days a week in the office and the other two from home. During this period Millar had had a number of operations and was to have another in May 2011. In the same year the company underwent a reshuffle and the company informed Millar that she had been made redundant, however, efforts were being made to find alternative employment within the company. A vacancies list was posted to Millar but no suitable vacancies were available nor were any roles available on the company intranet. After a succession of meetings with the IPC’s Publishing Director (‘O’), Millar’s workplace redundancy was confirmed with effect from the 15th April 2011.
Millar’s appeal was heard by a different publishing director (‘G’), and O was also present. O was asked about alternative vacancies to which she replied that various roles were available including the position of associate editor. Millar told of how she was not aware of these vacancies to which O replied they had not be signed off.
Although similar roles had been offered and declined by her colleagues, they had not been offered to Millar at all. Her appeal was heard but dismissed and confirmed in writing, the issue of her health and age was addressed stating that it had no part in the decision to make her redundant, and that it was due to the lack of suitable roles available.
Millar brought proceedings on the basis that she had been discriminated against on account of her age and disability (osteoarthritis) in breach of the Equality Act 2010, which prohibits “discrimination arising in the consequence of disability”. Millar’s claim for direct disability discrimination was dismissed by the tribunal but an alternative claim was held due to the employer failing to consider Millar for two alternative positions due to “anticipated future absences”. The tribunal found that the claimant had made out a prima facie case of discrimination i.e. that, in the absence of an explanation, it appeared that discrimination had occurred, in that the company had failed to give the claimant the chance to apply for alternative vacancies, due to her absence.
On appeal, the tribunal was found to have failed to address what the employer had known of Millar’s disability and therefore was incorrect to conclude that the discrimination had taken place.
Before the EAT the employer argued that a prima facie case of discrimination was not appropriate as it couldn’t be shown that O was aware of Millar’s absences and therefore this could not have influenced her. Although Millar’s line manager was aware of her condition the person who was in charge of redundancy was not and therefore the claim was unsuccessful.