Case round-up

This week’s case round-up

Employer can be held liable for acts of contractors
Ree v Redrow Homes (Yorkshire) Limited, EAT, EAT/0035/03

n In this decision, the Employment Appeals Tribunal (EAT) decided that an
employer could be held liable for disability discrimination arising from the
acts of third parties, in the same way that it could for sex and race

Ree, an apprentice bricklayer, was dyslexic. He brought a complaint of
disability discrimination against his employer, claiming he had been subjected
to bullying at work.

The company accepted Ree was a disabled person, but argued that under the
provisions of the Disability Discrimination Act (DDA), it could not be held
responsible for any bullying carried out by contract workers on site who were
not its employees. The tribunal agreed and dismissed Ree’s complaints.

Ree appealed, arguing that the principles of liability for sex and race
discrimination (established in Burton v De Vere Hotels Limited,1996, IRLR 596)
should also apply to disability discrimination, namely that the employer is
responsible for acts of discrimination that were sufficiently under its control
to have prevented them.

The appeal was allowed.

While the definition of discrimination under the DDA differs from that in
the Sex Discrimination Act and Race Relations Act, the EAT adopted a purposive
approach to the legislation.

It concluded that disabled individuals should have protection from
harassment by third parties in line with the principles established in race and
sex discrimination.

The EAT acknowledged that in allowing the claim to proceed, it was pushing
the legal boundaries. For this reason, it gave leave for the parties to appeal
to the Court of Appeal.

Incontinence was a disability
Kirton v Tetrosyl Limited, CA, [2003] All ER(D) 190

The Court of Appeal held that an employee, who was left partially
incontinent following surgery to treat prostate cancer, was disabled within the
Disability Discrimination Act (DDA) as a result of a progressive condition.

Kirton suffered urinary incontinence as a direct result of an operation he
underwent following a diagnosis of prostate cancer. In his complaint of
disability discrimination, Kirton argued that his impairment resulted from a
progressive condition and was therefore a disability under the DDA.

Both the tribunal and the EAT held that Kirton was not disabled as a result
of a progressive condition, because his impairment (incontinence) resulted from
the surgery and not the progressive condition itself (cancer).

Kirton’s appeal to the Court of Appeal was upheld on the basis that to hold
that his impairment was not the result of his prostate cancer was to apply an
overly limited interpretation of the legislation. The DDA was intended to
protect disabled people who had progressive conditions from the moment symptoms
first appeared. Kirton’s incontinence was sufficiently linked to the cancer to
result from it, notwithstanding the intervening act of surgery.

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