Employment law

Employment lawBy Martin Edwards, Mace & Jones, LiverpoolDisability discrimination Abadeh v British Telecommunications plc (2001) IRLR 23 The Employment Appeals Tribunal (EAT) decided that a tribunal was wrong to find that a...Disability discrimination Abadeh v British Telecommunications plc (2001) IRLR 23 The Employment Appeals Tribunal (EAT) decided that a tribunal was wrong to find that a telephone operators impairment did not have a substantial adverse effect on his ability to carry out normal day-to-day activities.

The tribunal was over influenced by the employers regional medical officers opinion of whether or not the impairments were substantial under the Act and in effect adopted her assessment instead of making their own.

The EAT said that it is not the task of a medical expert to tell the tribunal whether an impairment was or was not substantial.

That is a question for the tribunal itself.

The medical report should deal with the doctors diagnosis of the impairment, the doctors observation of the applicant carrying out activities, and the ease with which he was able to perform those functions, together with any opinion as to prognosis.

The tribunal also erred in failing to deal with the medical treatment received by the employee.

It was not clear on the medical evidence available whether the improve-ment in the applicants condition as a result of treatment he had received was likely to be permanent or temporary, and thus the medical evidence would have to be assessed.

Where treatment is continuing, it may be having the effect of masking a disability so that it does not have a substantial adverse effect.

If the final outcome of the treatment cannot be determined, or if it is known that the removal of the treatment would result in a relapse or a worsened condition, the medical treatment must be disregarded under para 6(1) schedule 1 of the Disability Discrimination Act 1995.

But where the medical evidence satisfies the tribunal that the effect of the continuing treatment is to create a permanent improvement, effects of that treatment should be taken into account in order to assess the disability.

Finally, the tribunal also erred in failing to take account of the decision of a medical appeal tribunal that the employee had an 18% disablement, notwithstanding that the assessment was made to determine whether he was entitled to receive benefits.

The assessment was clearly relevant evidence that should have been taken into account, even though it was not directed to the questions posed under 1995 Act.

Leonard v Southern Derbyshire Chamber of Commerce (2001) IRLR 19The EAT held that a tribunal erred in finding that an employees clinical depression did not have a substantial adverse effect on her ability to carry out normal day-to-day activities.

The tribunal misdirected itself as to the way in which the guidance on the definition of disability should be applied and as to the need to focus on what the employee could not do or could only do with difficulty rather than on what she could do.

They took examples from the guidance of what she could do, such as being able to eat and drink, and catch a ball and then weighed that in the balance against what she could not do, such as negotiate pavement edges safely.

This was inappropriate, because the ability to catch a ball did not diminish her inability to negotiate pavement edges safely.

While it is essential that a tribunal considers matters in the round and makes an overall assessment, it must avoid concluding that as there are still many things that an employee can do, the adverse effect cannot be substantial.

In a case of mental impairment, it is particularly important for a tribunal to take into account the matters set out in paras.

C6 and C7 of the guidance.

Settling claims Sutherland v Network Appliance Ltd and another (2001) IRLR 12Mr Sutherlands employment was terminated on agreed terms, including payment of a sum of money in full and final settlement of any claims you may have against the company arising out of your employment or its termination.

Subsequently, he presented a complaint to the tribunal claiming a breach of statutory rights, including unfair dismissal, and damages for breach of contract.

The employers alleged that any claims for damages for breach of contract had been compromised by the agreement.

At a preliminary hearing, the tribunal held that it had no jurisdiction to consider the claims for damages for breach of contract, because of the agreement.

Mr Sutherland appealed on the basis that since the agreement referred to all claims without distinguishing between statutory and contractual claims, section 203 Employment Rights Act 1996 rendered the agreement void in its entirety.

The EAT upheld the tribunals decision.

Since claims for breach of contract arise under section 3 Employment Tribunals Act 1996, they are not caught by the restriction on contracting out in s.203(1) Employment Rights Act in respect of proceedings under that Act, even though any valid statutory claims could not have been excluded.

Where a compromise agreement, which is expressed as being in full and final settlement of any claim an employee may have failed to comply with section 203, the agreement is void only in respect of statutory claims.

It remains enforceable to the extent to which it contains a compromise of contractual claims.

Gloystarne & Co Ltd v Martin (2001) IRLR 15This case provides a cautionary tale for those dealing with others purporting to represent parties to tribunal proceedings.

Mr Martin presented an unfair dismissal claim, in which he did not identify a representative acting for him.

Two days before the hearing, a trade union official telephoned the tribunal to say that the parties had reached an agreement and confirmed the position by fax.

ACAS also informed the tribunal that a COT3 was being prepared.

The tribunal subsequently made an order staying the application.

However, the union official then wrote to the tribunal saying that Mr Martin had now decided not to complete the COT3 and wished his case to be relisted.

At the eventual hearing, it became clear that any terms of settlement which had been discussed and purportedly agreed between the trade union organiser, the employers and ACAS were done so without Mr Martins knowledge and consent.

The tribunal accepted Mr Martins evidence that he had gone absolutely ballistic when he discovered that ACAS was told that the case was settled.

The tribunal therefore ordered that the case be relisted for hearing.

The EAT upheld that decision.

Ostensible authority arises by the party himself holding out that a person was authorised to act on his behalf, not by a holding out by counsel, a solicitor, a CAB adviser or other representative.

B does not becomes As agent in dealings with C, nor does B acquire authority from A to act on As behalf in relation to C, by way only of what B says to C.

If that was the case, the EAT pointed out, principals could have agents completely unknown to them and over whom they had no control.

B becomes As agent in dealings with C by reason, in general, of what A says to C on that point or whether A conducts himself in some way that reflects on the possibility of Bs agency.

This particular decision may appear harsh in relation to the employers, but the reasoning seems to be correct.