Tribunal’s assessment of disability was unfair

When determining a disability discrimination claim, a tribunal should have
considered the tasks the plaintiff could not, rather than could, perform.  Plus, cases on constructive dsmissal,
disciplinary hearings and finding a race discrimination comparator

What 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 disability
discrimination claim, it was accepted that this condition constituted an
"impairment" that had an adverse effect on her ability to carry out
many activities. Nevertheless, the tribunal held that as it did not
substantially affect Ekpe’s normal day-to-day activities, she was not disabled
within the meaning of the Disability Discrimination Act 1995 and her claim
failed.

Ekpe successfully appealed and the EAT made two findings. First, when
deciding whether or not the condition caused a substantial adverse effect on
Ekpe’s normal day-to-day activities, the tribunal should have considered what
activities Ekpe could not carry out rather than establishing those that she
could. Second, the tribunal was wrong to consider that activities such as
putting in hair rollers or applying make-up were not normal day-to-day
activities simply because a small percentage of the population undertook those
activities. By their very nature they were clearly normal day-to-day activities
and 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 and
bullying, including dog faeces placed in his work bag and rancid milk in his
boots. In 1998 the investigation into the incidents concluded they had not
happened. Hamill voluntarily transferred to another site, which initially went
well. In 1999 his supervisor criticised him for taking too long on a job, even
though it was not his fault. Hamill resigned and successfully claimed
constructive dismissal.

The tribunal held that the cumulative effect of the incidents amounted to a
fundamental breach of the implied term of trust and confidence and the fact
that Hamill continued working after the initial incidents did not mean he had
waived his right to claim constructive dismissal following the final incident.
The issue was whether the last incident was sufficient a trigger to revive the
previous incidents.

Most important was the nature of the incidents, the time over which they
occurred, and the length of time between them. Any waiver was not "once
and 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 birthday
when he would have become entitled to certain accrued pension rights. He was
entitled to 12 weeks notice, but accepted a payment in lieu. He had no pay in
lieu of notice clause, so technically had been wrongfully dismissed.

Silvey successfully claimed damages for the loss of the pension rights, but
both the tribunal and EAT held his loss stemmed from the date of termination
rather than the breach of contract.

On appeal, the Court of Appeal found that the cause of the loss was the
breach of contract, (namely not allowing Silvey to serve his 12 weeks notice).
Accrued pension rights depended on service and any dismissal before Silvey’s
55th birthday would have a detrimental effect on him. The loss was not too
remote 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 per
cent shareholding in Arenascene. Connolly had a service agreement with EGP to
act as managing director and chairman of both companies, which were both sold
to IRH in April 1992.

Connolly entered into a contract of service with IRH to act as managing
director for his former companies, but held no shares in them. In June 1992 IRH
sold Arenascene to Sellars Arenascene, which terminated Connolly’s employment.

Connolly’s claim for unfair dismissal failed because the tribunal found that
prior to April 1992 he was the controlling shareholder of EGP rather than an
employee and did not have the requisite continuity of employment.

Connolly successfully appealed to the EAT, which held that the tribunal was
wrong to find that because Connolly was a controlling shareholder before his
employment with IRH, he could not be an employee.

Sellars Arenascene’s subsequent appeal failed. Although the Court of Appeal
confirmed that Connolly’s position as a controlling shareholding was an
important factor in deciding his employment status, (and in some cases could be
conclusive) it was not the only factor. There was no reason in principle why a
controlling 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 under
the Race Relations Act 1976. With regard to the victimisation claim, the
comparator used by the tribunal was simply an employee who had not carried out
the protected act.

Hounslow successfully appealed to the EAT, which held that the tribunal’s
comparator was too wide and that the Race Relations Act required consideration
of whether Bhatt would have been treated less favourably than an actual or
hypothetical comparator in any "relevant circumstances". Whilst this
did not mean comparison on a "like-for-like" basis, it did call for
consideration of circumstances that were relevant to the treatment Bhatt had
received, principles established in the cases of Khan and TNT Express.

The circumstances relevant in this case were that Bhatt had requested
redundancy dismissal on early retirement terms and had undergone disciplinary
hearings.

Care needed when conducting disciplinary hearings
Cave v Goodwin

IRLB 664, Court of Appeal

Cave, who had learning difficulties, was dismissed following his admission
of gross misconduct. He brought a disability discrimination claim, arguing that
Goodwin’s refusal to allow him to be accompanied by a friend (who was not a work
colleague) at the disciplinary hearing put him at a disadvantage.

The employment tribunal found that when compared to non-disabled people, the
disciplinary arrangements had not placed Cave at a substantial disadvantage and
the duty to make reasonable adjustments, such as permitting outside
representation, did not arise.

The tribunal’s decision was overturned by the Employment Appeal Tribunal but
restored by the Court of Appeal. It held that whether or not Cave had suffered
a detriment was a question of fact. Although Cave could have been placed at a
disadvantage by not being allowed outside representation, the tribunal had
considered all the relevant evidence and had concluded that Cave compared more
than adequately with non-disabled persons.

As a result, he had suffered no detriment, although Goodwin was criticised
for not explaining in person the allegations contained in the suspension
letter.

Strike out, medical reports and human rights
De Keyser v Wilson

IDS Brief 685, EAT

Wilson claimed constructive dismissal arising from stress at work, supported
by a medical report. De Keyser instructed its own medical expert. The letter of
instruction listed events in Wilson’s private life that could have caused her
illness.

The tribunal struck out De Keyser’s defence on the basis of its scandalous
conduct 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 no
breach of article 8 – the letter was written before the Act took effect, De
Keyser was not a public body and none of the information had been obtained
surreptitiously or in confidence.

Further, the tribunal should have considered whether a fair trial of the
issues was still possible before deciding to strike out. A fair trial was still
possible if a new doctor was instructed. The instructions could refer to other
possible causes of stress to lead the expert to make adequate enquiries but should
not seek to induce bias.  

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