Medical treatment affects appeal

A telephone operator’s disability claim goes back to appeal,
but his ongoing medical treatment must then be taken into account. Plus cases
on race discrimination, disciplinary proceedings and the ‘unreasonable’ actions
of a tribunal chairman in striking out a sex discrimination claim

What is a disability?

Abadeh v British Telecommunications
IDS Brief 675, EAT

Abadeh, a telephone operator, suffered permanent hearing loss and tinnitus
in his ear after receiving a sudden, high-pitched noise through his headset. He
also developed post-traumatic stress disorder. Abadeh brought a disability
discrimination claim and the tribunal had to establish if Abadeh was
"disabled" within the meaning of the Disability Discrimination Act.

The tribunal considered four medical reports, two for each of the parties.
BT’s reports were prepared by M. The tribunal held that although Abadeh had an
impairment that adversely affected his ability to carry out normal day-to-day
activities, the effects of the impairment were not substantial. Accordingly,
Abadeh was not disabled.

Abadeh appealed. The EAT found that the tribunal had been over-influenced by
M’s opinion and the matter was remitted to a fresh tribunal. Interestingly, the
EAT also held that the effects of medical treatment (Abadeh’s ongoing
psychotherapy), should be taken into account if the medical evidence showed
that continuing treatment brought a permanent improvement.

Awareness of investigation necessary

London Borough of Ealing v Garry

Garry, a Nigerian, was the council’s housing benefits manager. After
learning she had been investigated by her previous employer for suspected
housing benefit fraud and soon after dismissing another Nigerian employee for a
similar reason, the council appointed Singh, a "special" investigator
to look into the case concerning Garry.

In March 1997, Singh concluded Garry had been involved in a fraudulent claim
but Garry only learned she had been under investigation in May. The next month
she met the auditors and in August the council concluded there was insufficient
evidence to start disciplinary proceedings. It omitted to tell Garry or Singh
of this and he continued with his investigations, albeit limited to a few
further phone calls. Only in July 1998 was Garry told no further action would
be taken.

She brought a successful race discrimination claim. The tribunal held that
stereotypical assumptions had been made about Garry being a Nigerian and this
was why a "special" rather than ordinary investigator had been
appointed. Further, Garry had been subjected to a detriment by the ongoing
investigation even though she had been unaware of it. The council successfully
appealed. Although the tribunal had been entitled to infer the reason for
Singh’s appointment was Garry’s race, she had not suffered any detriment
because her lack of awareness of the ongoing investigation had not caused her
any actual disadvantage.

Care needed in disciplinary proceedings

R v Chief Constable of Merseyside Police ex-parte Bennion
IDS Brief 678, High Court

Bennion, a chief inspector, made a formal complaint about her systematic
harassment by another officer. After the investigation of her complaint, the
chief constable upheld the decision to transfer Bennion to another area. She
brought a sex discrimination claim, but before this was heard, was interviewed,
cautioned and tape-recorded about a possible disciplinary matter.

She added a victimisation claim to the tribunal proceedings, which were
stayed, pending the outcome of the disciplinary matter. The area’s new chief
constable refused Bennion’s request that the disciplinary hearing, which he was
to conduct, should be transferred to another force. Following the disciplinary
hearing, Bennion was demoted to Inspector.

On her successful application for a judicial review, the High Court quashed
the disciplinary decision. The chief constable should not have conducted
Bennion’s disciplinary hearing because the outcome could have a bearing on the
tribunal claim. No one could be a judge in their "own cause" where
there was a real possibility of partiality. Clearly this is a lesson to all
those conducting disciplinary proceedings.

Tribunal chairman acted unreasonably

Unwin v Governors of Sackville School and another
Unreported, February 2001, EAT

Unwin began proceedings for victimisation contrary to the Sex Discrimination
Act 1975. There was a massive amount of paperwork and the chairman adjourned
the hearing so that he and the tribunal members could read the papers
themselves. The chairman listed the matter for a directions hearing, which he
conducted alone. At that hearing, he struck out Unwin’s claim and ordered her
to pay the school’s costs.

Unwin successfully appealed to the EAT. It held that while the provisions of
the employment tribunals Act 1996 did enable a chairman to strike out a claim
before a final determination of the case on its merits and to determine costs,
the chairman had erred by not consulting the lay members and seeking their
views. The chairman and lay members had spent four days discussing Unwin’s case
before the adjournment and the chairman had not exercised his power in a
"judicial" manner.

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