On appeal

Continuing
our series on the implications of recent significant cases, Gareth Brahams, a
partner in the employment department at Lewis Silkin, looks at the issues
surrounding some employment-related disputes

Proving
disability discrimination
Rowden v Dutton Gregory, EAT, IDS Brief 718, October 2002

Ms
Rowden, a secretary with a firm of solicitors, was absent from work due to a
stress-related illness that amounted to a ‘disability’ for the purposes of the
Disability Discrimination Act 1995. She was unable to attend the disciplinary
hearing. Her case was heard in her absence and she was dismissed for a range of
offences including poor time-keeping, abuse of smoking privileges, refusal to
carry out instructions and excessive sick leave.

The
tribunal  found the employers had failed
to comply with their duty under the DDA to make ‘reasonable adjustments’ to
their normal disciplinary arrangements, to avoid placing her at a disadvantage.
However, the tribunal rejected Rowden’s alternative claim that she had suffered
unjustified ‘less favourable treatment’ by reason of her disability, both in
the disciplinary proceedings and her subsequent dismissal.

The
tribunal considered that any detriment to which Rowden had been subjected was
not related to her disability but to the matters set out by the employers in
their dismissal letter.  According to
the tribunal, this was not disability discrimination, despite the fact there
was little or no justification in the stated reasons for dismissal.

The
Employment Appeal Tribunal, allowing Rowden’s appeal, held that it was her
absence on sick leave – which was clearly related to her disability – that had
led to the disciplinary proceedings being inadequate. The EAT said the tribunal
was wrong in concluding that Rowden’s dismissal was not on grounds of her
disability.

Having
found a lack of merit in the employers’ reasons for dismissal, it had been open
to the tribunal to infer they had dismissed Rowden on grounds of her
disability. Also, two of the reasons put forward for dismissal – poor
time-keeping and excessive sick leave – were, on the face of it, related to her
disability.

This
decision illustrates the fact that in DDA claims there will rarely be explicit
evidence of unlawful bias on the part of the employer. The EAT confirmed that
if a tribunal is not satisfied by an employer’s reasons for unfavourable
treatment, it is open to it to draw an inference that disability discrimination
has taken place. This principle has been applied for many years in race and sex
discrimination cases (see King v Great Britain-China Centre, 1992, IRLR 516).

The
second noteworthy point arising from this decision is the same conduct by an
employer – in this case, failure to alter the disciplinary arrangements – can
amount both to ‘less favourable treatment’ and a breach of the duty of reasonable
adjustments. The relevant provisions of the DDA – Sections 5(1) and (2) – are
not mutually exclusive.

Tribunal
adjournments for medical reasons
Teinaz v London Borough of Wandsworth, CA, IRLR 721, 2002                                
Andreou v Lord Chancellor’s Department, CA, IRLR 728, 2002

Dr
Teinaz, who was suffering from severe stress, was advised by his doctor that he
should not attend the tribunal hearing of his claim. The employment tribunal
turned down his application for an adjournment and dismissed his claim, taking
the view that he had simply chosen not to attend the hearing. The EAT overruled
this on grounds that it could not reasonably be expected of a person who
receives medical advice not to attend a hearing, to then attend to prove his state
of health.

The
Court of Appeal upheld the EAT’s reasoning, emphasising that tribunals must
exercise their discretion to grant an adjournment, if not, to do so would
amount to a denial of justice. The court, did, however, add that tribunals are
entitled to be satisfied that the inability of a litigant to be present is
genuine and may require further evidence of this if they have significant
doubts.

This
was the situation in Andreou v Lord Chancellor’s Department, in which the Court
of Appeal stressed that the fact that a person is certified on medical grounds
as not fit to attend work does not automatically mean they are not fit to
attend a tribunal hearing. On the facts, the court held that the employment
tribunal was entitled to refuse Mrs Andreou’s application for an adjournment
when she failed to comply with an order requiring her to produce medical
evidence in support of her application.

Enforceability
of confidentiality clauses
Campbell v Frisbee, CA, IDS Brief 721, November 2002

Naomi
Campbell’s personal assistant, Vanessa Frisbee, signed a confidentiality
agreement prohibiting her from revealing details of the model’s professional or
private life either during or after performance of the contract. When she sold
the story of Campbell’s alleged affair with an actor to the News of the World,
Campbell sued for damages.

In
response, Frisbee claimed the working relationship had broken down after
Campbell violently assaulted her. She said this amounted to a wrongful
termination of her contract, thereby freeing her from any obligation of
confidentiality. The High Court rejected this argument and awarded summary
judgment in favour of Campbell, apparently on the basis that confidential
information is a form of ‘property’ – an employer’s rights over it survive
wrongful termination of the contract.

The
Court of Appeal has now allowed Frisbee’s appeal, but only to the extent that
the law was not sufficiently clear as to make this a suitable case for summary
judgment. The court nonetheless strongly hinted that the High Court’s analysis
was probably correct and the confidentiality undertaking in this case would
remain intact.

However,
it is established that other types of post-termination restrictive covenants in
employees’ contracts – such as anti-competition and non-solicitation clauses –
cannot be relied on by employers who seriously breach the contract (Rock
Refrigeration Ltd v Jones, 1996, IRLR 675).

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