Hinton v Copal Castings Limited,
EAT, at tribunal 9 March 2005, EAT website 20 September 2005
In considering whether an employer’s duty to make reasonable adjustments had arisen, the Employment Appeal Tribunal (EAT) was satisfied that the position should be judged on the employee’s actual condition, rather than what they and the employer believed at the time.
Hinton was diagnosed with diabetes which both he and the company believed to be type 1 diabetes, the implications of which would be that Hinton would have to regularly inject insulin and closely monitor his blood sugar levels. Type 1 diabetes constitutes a disability for the purposes of the Disability Discrimination Act 1995 (DDA).
After a few weeks’ absence on sick leave, the company enquired about Hinton’s progress and likely return to work. On his behalf, a request was made that he return part-time, in light of his condition. The company said it was unable to accommodate this request, but suggested he might instead apply for voluntary redundancy.
Shortly afterwards it became clear that Hinton had type 2 diabetes for which no injections or special treatment were necessary and which does not constitute a ‘disability’ under the DDA. There was no further communication from the company to resolve his position, however, and two months later Hinton resigned.
The tribunal complaint
Hinton claimed that his treatment – specifically the offer of voluntary redundancy and the failure to make reasonable adjustments by allowing him to work part-time – amounted to constructive dismissal and disability discrimination.
In the latter respect, the company was duty bound under the DDA to make appropriate, reasonable adjustments to his working arrangements. This might well have included allowing him to return to work part-time or some other flexible working arrangement. The tribunal found that the company’s failure in this respect constituted disability discrimination. It also went on to find that, by introducing voluntary redundancy and its poor handling of discussions with Hinton, the company had broken trust and confidence and constructively dismissed him.
The decision on appeal
On appeal the EAT found no fault with the tribunal, except in one critical respect. By the time of the tribunal hearing, it was apparent that Hinton did not have type 1 diabetes and accordingly was not ‘disabled’. The company argued that, in considering whether the duty to make reasonable adjustments arose, the position should be judged on the true facts of the case, rather than what the parties had believed at the time. The EAT was clear that the DDA only applies to “a person who has a disability”. Therefore, only his constructive dismissal claim was upheld.
The EAT expressed its surprise that in the 10 years since the DDA came into force, this point had apparently not arisen before. In practice, it is potentially helpful to employers who will now be let off their mistakes if an employee is found not to be disabled after all. Be aware, however, that in every other form of discrimination protection in the UK, it is individual perception that dictates liability.