Miss Czikai, who suffers from fibromyalgia (a condition which causes widespread pain and fatigue), appeared on the ITV show in 2009 in a bid to win the £100,000 prize money and a place on the Royal Variety Performance. However, following her failed audition she declared that the reason for her poor rendition of Westlife’s ‘You Raise Me Up’ was that she found it difficult to hold the microphone due to swollen and painful arms.  Miss Czikai claimed in interview that conditions were “unfair” as no adjustments were made to microphone levels or backing music, creating a bad performance to which all three judges gave a resounding ‘no’.

Miss Czikai brought two claims in the employment tribunal against the show; the first for failing to make reasonable adjustments for her disability and the second for harassment caused by broadcasting her performance on ITV and on the internet.  The claims were brought against two of the show’s judges, Simon Cowell and Amanda Holden, personally as well as the show’s production companies, Fremantle Media Ltd and Simco Ltd. 

Under section 4(1) of the DDA applicants are protected from discrimination by prospective employers on the ground of disability.  However, it was held at a pre-hearing review that the purpose of the show was for entertainment and not an, “arrangement … for the purpose of determining to whom [the respondent] should offer employment”.  The employment tribunal decided that although some contestants may be offered contracts of employment that was not the purpose of the show and therefore her claim did not fall within the scope of the DDA.

The tribunal also held that the show was not acting as an ‘employment services provider’ under section 21A of the DDA as they were not offering “vocational guidance or training”.  Her harassment claims under section 4(3) of the DDA were rejected for the same reason; Miss Czikai was not applying for employment.

It was argued that even if the respondents in the case had fallen within the scope of the DDA, the case would have been struck out as having no reasonable prospect of success as Miss Czikai did not inform producers of any adjustments she wanted making.  It was heard that no one on the show was aware of her condition and notes taken by the producer of the show suggested that she had overcome previous health problems and did not require help.

This does, however, highlight the need for prospective employers who do fall within the scope of the new Equality Act 2010, which replaced the DDA from 1 October 2010, to be aware of the applicant’s rights, and that in certain circumstances, prospective employers may be exposed to potential claims by failing to consider or making adjustments for disabled job applicants.

Please contact Yunus Lunat of our Employment Department if you would like more information.

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