Case roundup

This week’s case roundup

When should disability be assessed?
Cruickshank v Vaw Motorcast Ltd, unreported October 2001, EAT

Cruickshank was asthmatic. His condition was exacerbated by exposure to
fumes at work but improved when he was at home. Even though Vaw gave
Cruickshank alternative duties, he was still intermittently exposed and as a
result often absent on sick leave.

In July 1999, Cruickshank was dismissed and unsuccessfully claimed
disability discrimination. The tribunal held he was not suffering from a
disability at the time of the hearing and that his ability to carry out
"normal day-to-day activities" was not substantially affected.

Cruickshank successfully appealed to the EAT. The point at which to evaluate
a disability was the date of the discriminatory act, which in Cruickshank’s
case was his dismissal.

Moreover, when assessing whether Cruickshank’s asthma had a substantial
effect on his ability to carry out "normal day-to-day activities" it
was necessary to consider the affect of the disability in both the home and
work environment and it was irrelevant that Cruickshank’s work environment was
a specialised one which exacerbated his asthma.

The case was remitted so that both issues could be reconsidered.

Pregnancy-related dismissal unlawful
Tele Danmark v Brandt-Nielsen, IDS Brief 696, ECJ

Brandt was appointed on a six-month contract commencing 1 July 1995 and the
first two months were to be spent training. Brandt was due to give birth in
November, but did not tell Tele Danmark this. When she told her employer in
August about her pregnancy she was dismissed.

Brandt claimed sex discrimination, but was unsuccessful because she had
failed to tell the company about her pregnancy. The decision was reversed on
appeal, the court deciding Brandt had been dismissed on the grounds of her

Tele Danmark appealed to the Danish Supreme Court, which referred the matter
to the ECJ. Tele Danmark argued that it dismissed Brandt because she could not
perform a substantial part of the contract, not because she was pregnant. And
her failure to inform them of the pregnancy at the outset breached the duty of
good faith.

The ECJ held the Equal Treatment and Pregnant Workers Directives applied.
Dismissal (or refusal to recruit) because a worker is pregnant is direct sex
discrimination, regardless of any financial loss incurred by the employer
arising out of the employee’s absence because of pregnancy and regardless of
whether the worker was fixed term or permanent.

An employee’s inability to perform a substantial part of the contract, the
size of the employing organisation and the fact that it may regularly use
temporary workers are irrelevant.

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