Case round-up

Case round-up by Eversheds 020 7919 4500

Subsequent events render dismissal unfair
Colvin v Attol Business Systems Limited, EAT, [2003]All ER (D) 121

In this case, a redundancy dismissal became unfair as a consequence of
subsequent events.

Colvin worked alongside one other colleague, but it became necessary to make
one of them redundant. Colvin was selected and given notice, and he then left
employment. Shortly afterwards, his colleague resigned, and the position was
advertised in the job centre. Colvin was not offered the job and brought an
unfair dismissal claim.

The tribunal held that there had been inadequate consultation during the
selection process, and found that Colvin’s employment would have continued for
another month had a fair procedure been followed.

Compensation was limited to that period. Colvin appealed against the award
on the basis that the company’s failure to offer him the other job meant his
dismissal was unfair for reasons other than just the lack of consultation. The
EAT allowed his appeal.

Had Colvin been engaged for the additional month, there would have been no
need for the company to advertise externally for his colleague’s position to be
filled. It was unfair to carry out an otherwise genuine redundancy dismissal when
more work became available, or the pool of people to be dismissed had reduced.

Cause of the impairment should be disregarded
Power v Panasonic UK Limited, EAT, [2003] IRLR 151

Power was employed as an area sales manager. Following a reorganisation,
Panasonic reduced the number of area sales managers. Power was signed off sick,
and was eventually dismissed. She then brought a claim of disability

It was agreed by both medical experts that she was suffering from depression
and drinking heavily during her period of sick leave.

In deciding whether Power was disabled under the Disability Discrimination
Act, the tribunal had to consider whether alcoholism had caused Power’s
depression, or whether depression was the cause of her alcoholism.

The tribunal held that Power was not disabled within the meaning of the Act,
on the basis that alcohol addiction is expressly excluded as an impairment for
the purposes of the statutory definition of disability (under the Disability
Discrimination (Meaning of Disability) Regulations 1996).

Power appealed, citing the statutory guidance on the definition of
disability, which provides that a tribunal should not have regard to the cause
of an impairment, even if the cause itself would not amount to a disability or
impairment within the meaning of the Act.

Her appeal was allowed. The EAT said that it is not material to a decision
as to whether a person is suffering a disability to consider how the impairment
was caused. A tribunal must ascertain whether the impairment itself is a
disability within the meaning of the Act, or whether it is an impairment
excluded by reason of the regulations. The case was remitted for a rehearing.

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