This week’s case roundup
What constitutes a substantial adverse effect?
Ekpe v Commissioner of Police of the Metropolis, unreported, May 2001,
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
Ekpe successfully appealed and the EAT made two findings. First, when
deciding whether or not the condition caused a substantial adverse effect on
Epke’s normal day-to-day activities, the tribunal should have considered what
activities Ekpe could not carry out rather than establishing those that she
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.
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