On appeal

Continuing
a regular series spelling out the implications of important cases which have
been heard recently in the appeal courts. Sarah Lamont looks at the issues.

Meaning
of “Dismissal” for DDA
Commission of Police of the Metropolis v Harley, unreported, February
2001, EAT 185/2000

Under
the Disability Discrimination Act 1995 (DDA), it is unlawful for an employer to
discriminate against a disabled person whom it employs by dismissing him.
However, “dismissal” is not defined. In this case, the EAT considered the
meaning of dismissal in this context.

It
held that a termination of the contract of employment by a unilateral act of
the employer (ie, an actual dismissal) is covered by the DDA. However, the
ending of a contract by effluxion of time (such as a fixed-term contract which
expires) and a constructive dismissal are not covered.

The
EAT compared the wording of the Sex Discrimination Act 1975 (SDA) and the Race
Relations Act 1976 (RRA) with the DDA. There is no definition of “dismissal” in
the RRA and, originally, there was no definition in the SDA until in 1986 it
was specifically amended to include a termination by effluxion of time and a
constructive dismissal. Given the fact that Parliament had clearly taken the
view that such amendment was necessary, the EAT could not hold that “dismissal”
under the DDA was wide enough to cover these events.

Damages
for the manner of dismissal

Johnson v Unisys, unreported, March 2001, House of Lords

In
Addis v Gramophone Co, 1909, AC 488, it was held that common law damages
for wrongful dismissal cannot include compensation for injury to feelings or
loss of reputation arising from the manner of a dismissal. To address this lack
of protection Parliament introduced the unfair dismissal legislation in the
1970s. The issue arose again in this case.

Johnson
had won an unfair dismissal claim. He then brought a second claim in the County
Court for damages arising from the manner of his dismissal, alleging
that it was in breach of various implied terms in his contract of employment,
in particular the implied term of trust and confidence. He alleged that as a
consequence of the manner of the dismissal he suffered a mental breakdown and
he had been unable to find work. The House of Lords rejected his claim on the
facts but their decision has a number of important implications.

First,
the implied term of trust and confidence does not apply to a dismissal; the
employer’s right to dismiss an employee is “strongly defended by the terms of
the contract”. Further, the implied duty is concerned with preserving the continuing
relationship – it is not appropriate in connection with the way in which the
relationship is terminated.

Second,
an alternative implied term was considered by the court: that the power of
dismissal would be exercised fairly and in good faith. Although it was,
theoretically, possible to imply such a term, in practice there would be
problems. Further, the court held that issues arising out of the manner of the
dismissal should be dealt with under the protection for unfair dismissals.

Consequently,
and importantly for unfair dismissal law, the court held that the compensatory
award for unfair dismissal should no longer be limited to financial loss. The
tribunal has the power to award compensation as it thinks “just and equitable”
and in an appropriate case this could compensation for distress, humiliation,
damage to reputation in the community or to family life as a result of the
dismissal.

Sex
Discrimination and Fixed-term Contracts

Whiffen v Milham Ford Girls’ School, unreported, March 2001, Court of Appeal

Whiffen
had taught at a girls’ school for five years on a part-time basis under a
series of fixed-term contracts. Her final contract was not renewed because
there was a redundancy situation at the school. The school followed its own
redundancy policy under which staff on fixed-term contracts were made redundant
first, irrespective of their length of service, qualifications and experience.
Accordingly, they were removed from the process before the selection process
was undertaken. Whiffen complained that this policy indirectly discriminated
against women on grounds of sex.

The
tribunal accepted a number of things: that the school had applied a requirement
or condition (namely that she had to be a permanent employee in order to
qualify for the redundancy selection process); that the proportion of women who
could comply with the condition was considerably smaller than the proportion of
men; and that it operated to her detriment because she had lost the chance to
retain her job. But it held that the school had objectively justified the
discriminatory treatment .

The
court did not agree that it was appropriate to the running of a good school to
ensure that staff on fixed-term contracts, whatever their length of service,
should be dismissed automatically. More important, however, all the school had
done was to justify the need to have a redundancy policy per se but it was the
particular requirement in that policy that fixed-term staff be dismissed
immediately which needed to be justified, and in this case the school had
failed to do that.

Human
Rights, medical evidence and the DDA

De Keyser v Wilson, unreported, March 2001, EAT 1438/00

Wilson
raised a grievance with her employer about events at work which she alleged had
caused stress. She subsequently resigned, claiming unfair constructive
dismissal on the basis that the company had failed to deal properly with her
grievance.

She
intended to rely on medical evidence and a chairman ordered that she be
examined by a specialist selected by the company. The company wished to show
that the stress was more likely to have been caused by Wilson’s private life so
the letter of instruction to the specialist referred to a number of events in
her private life. Wilson’s representative complained and the tribunal struck
out the company’s Notice of Appearance, partly because it was in breach of her
right to privacy under the Human Rights Act.

The
EAT disagreed and noted that the information in the letter had not been given
by Wilson in confidence and although Wilson had a right to privacy, that right
was qualified by the right of litigating parties to have a just trial of the
issues.

Finally,
the EAT gave guidance on the way expert evidence should be collected in
tribunal cases which expressed a preference for the joint instruction of a
single expert. If parties fail to comply with the EAT’s guidelines, costs may
be awarded.

Sarah
Lamont is a partner at Bevan Ashford

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