Employment law

Disability discriminationCosgrove v Caesar & Howie (2001) IRLR 653A legal secretary employed by a firm of solicitors was absent for a year owing to depression.When she was dismissed, she claimed to have been discriminated against on the ground of her disability.

The tribunal rejected her claim, saying that there was no evidence to suggest that the employers 'would have treated anybody else differently who had been absent from work for over a year ...

After so long an absence and without a prognosis being available ...

dismissing the applicant was justified.

This was against the background that neither the applicant nor her medical witness was able to state what adjustments the respondents could have made to improve her situation and to facilitate an eventual return.' The Employment Appeal Tribunal (EAT) decided that the tribunal had erred in law.

The correct approach is that set out in Clark v TDG Ltd t/a Novacold (1999) IRLR 318.

The first question concerns the material reason for the dismissal.

The second question is whether that reason related to the employee's disability.

The third question is whether the employer would have dismissed someone else to whom that material reason would not apply.

In this case, the material reason for dismissal was the absence on medical grounds, which amounted to a disability and there would have been no reason to dismiss someone else to whom that reason would not apply.

Furthermore, the tribunal was wrong to say that the employers were not in breach of a duty to make reasonable adjustments on the basis that neither the employee nor her GP could think of anything that would have represented a satisfactory adjustment, in circumstances in which the employers themselves had given no thought to the matter.

The duty to make adjustments is on the employer.

The EAT acknowledged that there will, no doubt, be cases where the evidence given on the applicant's side alone will establish a total unavailability of reasonable and effective adjustments.

However, it does not follow that because a former secretary, long absent from the firm and clinically depressed to the point of disability, and her GP, could postulate no useful adjustment, that the duty on the employer to make adjustments should be taken as satisfied.These employers had never turned their mind to adjustments.

Had they done so, the EAT said, there were possibilities which might have facilitated a return to work, such as a transfer to another office or an alteration of the employee's working hours.

Rugamer v Sony Music Entertainment UK Ltd; McNicol v Balfour Beatty Rail Maintenance Ltd (2001) IRLR 644These cases concerned a state of affairs described medically as functional or psychological 'overlay'.

This is where a person claims to be suffering from a physical injury, but the doctor is satisfied that the symptoms are not the manifestation of any organic physical pathology, but are instead a manifestation only of the individual's psychological state.Both cases concerned a person claiming to be disabled by reason of a physical impairment.

Neither person claimed to have a mental impairment or presented any psychiatric evidence establishing the presence of a mental illness or disorder.

In each case, the employment tribunal found that the person did not have a physical impairment at the relevant time, although there might have been a state of functional or psychological overlay.

In both cases, the tribunal decided that the applicant was not disabled in terms of the Disability Discrimination Act 1995.

The EAT upheld these findings.

In neither case was there any attempt to provide evidence to demonstrate the presence of any identified condition meeting the very specific diagnostic criteria for generally recognised mental disorders in either the World Health Organisation's international classification of diseases or the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.

The EAT found it significant that 'functional overlay' or 'psychogenic overlay' did not appear as a recognised illness or disorder in its own right in either system of classification.The EAT concluded that neither tribunal had erred in failing to embark on a greater inquiry as to whether the applicant had a recognised mental disorder.

The role of the tribunal may indeed have 'an inquisitorial element', but that does not mean that the tribunal has a duty to conduct a free-standing inquiry of its own, or require it to attempt to obtain further evidence beyond that placed in front of it on the issues raised by the parties, or to cause the parties to raise additional issues they have not sought to rely on at all.

London Clubs Management Ltd v Hood (2001) IRLR 719A casino inspector's contract provided that payment during sickness absence would only be made at the discretion of senior management.

The employee developed 'cluster headaches', which interfered with his sleep and affected his ability to cope with his job.

In 1998, he was paid sick pay for 39 days of sickness absence.

The following year, because of a generally high level of staff sickness, management decided to exercise their discretion not to pay sick pay generally.When cluster headaches caused the employee to have two further weeks of absence, he was not paid sick pay (but he was treated no differently in this respect than other employees of his grade).

He complained that he had suffered unlawful disability discrimination.

A tribunal found that the employers had discriminated against him on grounds of his disability under section 5(1) of the Disability Discrimination Act 1995 and also by failing to make a reasonable adjustment contrary to section 5(2) of the Act.

However, the EAT took a different view.

As regards the complaint under section 5(1), the tribunal was wrong to base its decision on the premises that the treatment complained of was the failure to pay wages ordinarily due, rather than non-payment of sick pay.

The tribunal should have considered whether the employee was refused sick pay for a reason which related to his disability, rather than whether he was not receiving pay ordinarily due for that reason.

If the tribunal had asked the right question, the only available conclusion was that the reason for non-payment was the application of the general policy on sick pay - and that reason did not relate to the employee's disability.

Furthermore, the tribunal had failed to give adequate reasons for its decision that the failure to pay sick pay amounted to a failure to make a reasonable adjustment.The evidence indicated that non-disabled employees also had significant periods of unpaid sickness absence.

In those circumstances, it was not open to the tribunal to assume that this employee had more absences than people who were not disabled and was thus placed under a substantial disadvantage by the non-availability of sick pay.

The case was remitted for this issue to be reconsidered.

Finally, the tribunal was entitled to conclude that payment of sick pay can be a reasonable adjustment within section 6 of the Act.

Vicarious liabilityBalfron Trustees Ltd v Peterson and others (2001) IRLR 758The High Court held that it was arguable that a solicitor's firm was vicariously liable for the actions of a solicitor it employed.

It was alleged that the solicitor had assisted in implementing a plan which involved funds being misappropriated from a pension scheme.

The crucial factor in deciding whether an employer is vicariously liable for an employee's acts is whether the employer owed some form of duty or responsibility towards the victim.

If so, the employer cannot avoid liability because that duty was delegated to an employee who failed to comply with the employer's instructions.

This concept is at the heart of the House of Lords' decision in Lister v Hesley Hall Ltd (2001) IRLR 472.