Previous Article Next Article Tribunal’s assessment of disability was unfairOn 1 Jul 2001 in Personnel Today Comments are closed. When determining a disability discrimination claim, a tribunal should haveconsidered the tasks the plaintiff could not, rather than could, perform. Plus, cases on constructive dsmissal,disciplinary hearings and finding a race discrimination comparatorWhat constitutes a substantial adverse effect? Ekpe v Commissioner of Police of the Metropolis Unreported, May 2001, EAT Ekpe had a muscle-wasting disease in her right hand. During her disabilitydiscrimination claim, it was accepted that this condition constituted an”impairment” that had an adverse effect on her ability to carry outmany activities. Nevertheless, the tribunal held that as it did notsubstantially affect Ekpe’s normal day-to-day activities, she was not disabledwithin the meaning of the Disability Discrimination Act 1995 and her claimfailed. Ekpe successfully appealed and the EAT made two findings. First, whendeciding whether or not the condition caused a substantial adverse effect onEkpe’s normal day-to-day activities, the tribunal should have considered whatactivities Ekpe could not carry out rather than establishing those that shecould. Second, the tribunal was wrong to consider that activities such asputting in hair rollers or applying make-up were not normal day-to-dayactivities simply because a small percentage of the population undertook thoseactivities. By their very nature they were clearly normal day-to-day activitiesand the tribunal’s decision to the contrary was perverse. A series of breaches can constitute constructive dismissal JV Strong & Co v Hamill IDS Brief 684, May 2001, EAT For almost a year Hamill suffered a series of incidents of harassment andbullying, including dog faeces placed in his work bag and rancid milk in hisboots. In 1998 the investigation into the incidents concluded they had nothappened. Hamill voluntarily transferred to another site, which initially wentwell. In 1999 his supervisor criticised him for taking too long on a job, eventhough it was not his fault. Hamill resigned and successfully claimedconstructive dismissal. The tribunal held that the cumulative effect of the incidents amounted to afundamental breach of the implied term of trust and confidence and the factthat Hamill continued working after the initial incidents did not mean he hadwaived his right to claim constructive dismissal following the final incident.The issue was whether the last incident was sufficient a trigger to revive theprevious incidents. Most important was the nature of the incidents, the time over which theyoccurred, and the length of time between them. Any waiver was not “onceand for all”, but rather conditional on there being no repeat. Damages for loss of accrued pension rights Silvey v Pendragon Unreported, May 2001, CA Silvey was made redundant in November 1997, 12 days before his 55th birthdaywhen he would have become entitled to certain accrued pension rights. He wasentitled to 12 weeks notice, but accepted a payment in lieu. He had no pay inlieu of notice clause, so technically had been wrongfully dismissed. Silvey successfully claimed damages for the loss of the pension rights, butboth the tribunal and EAT held his loss stemmed from the date of terminationrather than the breach of contract. On appeal, the Court of Appeal found that the cause of the loss was thebreach of contract, (namely not allowing Silvey to serve his 12 weeks notice).Accrued pension rights depended on service and any dismissal before Silvey’s55th birthday would have a detrimental effect on him. The loss was not tooremote and he was entitled to damages for his loss. Can a majority shareholder be an employee? Sellars Arenascene v Connolly IDS Brief 683, CA Connolly was the majority shareholder in EGP, which in turn had a 99 percent shareholding in Arenascene. Connolly had a service agreement with EGP toact as managing director and chairman of both companies, which were both soldto IRH in April 1992. Connolly entered into a contract of service with IRH to act as managingdirector for his former companies, but held no shares in them. In June 1992 IRHsold Arenascene to Sellars Arenascene, which terminated Connolly’s employment. Connolly’s claim for unfair dismissal failed because the tribunal found thatprior to April 1992 he was the controlling shareholder of EGP rather than anemployee and did not have the requisite continuity of employment. Connolly successfully appealed to the EAT, which held that the tribunal waswrong to find that because Connolly was a controlling shareholder before hisemployment with IRH, he could not be an employee. Sellars Arenascene’s subsequent appeal failed. Although the Court of Appealconfirmed that Connolly’s position as a controlling shareholding was animportant factor in deciding his employment status, (and in some cases could beconclusive) it was not the only factor. There was no reason in principle why acontrolling shareholder could not also be an employee. Race discrimination comparator Bhatt v London Borough of Hounslow Unreported, June 2001, EAT Bhatt brought successful claims for unfair dismissal and victimisation underthe Race Relations Act 1976. With regard to the victimisation claim, thecomparator used by the tribunal was simply an employee who had not carried outthe protected act. Hounslow successfully appealed to the EAT, which held that the tribunal’scomparator was too wide and that the Race Relations Act required considerationof whether Bhatt would have been treated less favourably than an actual orhypothetical comparator in any “relevant circumstances”. Whilst thisdid not mean comparison on a “like-for-like” basis, it did call forconsideration of circumstances that were relevant to the treatment Bhatt hadreceived, principles established in the cases of Khan and TNT Express. The circumstances relevant in this case were that Bhatt had requestedredundancy dismissal on early retirement terms and had undergone disciplinaryhearings. Care needed when conducting disciplinary hearings Cave v Goodwin IRLB 664, Court of Appeal Cave, who had learning difficulties, was dismissed following his admissionof gross misconduct. He brought a disability discrimination claim, arguing thatGoodwin’s refusal to allow him to be accompanied by a friend (who was not a workcolleague) at the disciplinary hearing put him at a disadvantage. The employment tribunal found that when compared to non-disabled people, thedisciplinary arrangements had not placed Cave at a substantial disadvantage andthe duty to make reasonable adjustments, such as permitting outsiderepresentation, did not arise. The tribunal’s decision was overturned by the Employment Appeal Tribunal butrestored by the Court of Appeal. It held that whether or not Cave had suffereda detriment was a question of fact. Although Cave could have been placed at adisadvantage by not being allowed outside representation, the tribunal hadconsidered all the relevant evidence and had concluded that Cave compared morethan adequately with non-disabled persons. As a result, he had suffered no detriment, although Goodwin was criticisedfor not explaining in person the allegations contained in the suspensionletter. Strike out, medical reports and human rights De Keyser v Wilson IDS Brief 685, EAT Wilson claimed constructive dismissal arising from stress at work, supportedby a medical report. De Keyser instructed its own medical expert. The letter ofinstruction listed events in Wilson’s private life that could have caused herillness. The tribunal struck out De Keyser’s defence on the basis of its scandalousconduct and breach of article 8 (Right to Privacy) under the Human Rights Act.The decision was overturned on appeal. The EAT held that there had been nobreach of article 8 – the letter was written before the Act took effect, DeKeyser was not a public body and none of the information had been obtainedsurreptitiously or in confidence. Further, the tribunal should have considered whether a fair trial of theissues was still possible before deciding to strike out. A fair trial was stillpossible if a new doctor was instructed. The instructions could refer to otherpossible causes of stress to lead the expert to make adequate enquiries but shouldnot seek to induce bias. Related posts:No related photos.