Employment law

By Martin Edwards, Mace & Jones, Liverpool

Disability discriminationKapadia v London Borough of Lambeth (2000) IRLR 699The Court of Appeal has dismissed an appeal against the decision reported at (2000) IRLR 14.

On the evidence, the Employment Appeal Tribunal (EAT) was entitled to make a declaration that the applicant fell within the definition of 'disabled person' in s.1 Disability Discrimination Act 1995, and did not need to remit the issue to the tribunal on the basis that there was more than one possible answer to the question of whether he was protected by the Act.

Pill LJ noted that there would be cases in which a tribunal is not obliged to accept medical evidence - even where it has not been contested.

The evidence on which a doctor has formed an opinion may be rejected or it may be that the medical witness has misunderstood the evidence which he was invited to consider in expressing his opinion.

But that was not the case here.

Pill LJ expressed the view that, by consenting to a medical examination on behalf of an employer, the employee was consenting to the disclosure of a resulting report from that examination.

No further consent was required.

London Borough of Hammersmith & Fulham v Farnsworth (2000) IRLR 691An employer withdrew an offer of employment after receiving an adverse report from their occupational health physician, without enquiring further into the applicant's medical history.

The EAT upheld a tribunal's finding that the employer had the requisite knowledge for it to be held that they had treated her less favourably for a reason related to her disability.

Even though the occupational health physician was not employed by the employer, she was their agent and was part of their decision-making team responsible for deciding not to offer the applicant employment.

By denying itself information as to the medical history upon which the occupational health physician made her report, the employer constituted her a relevant decision-maker.

In any event, the employer's knowledge of the disability was irrelevant in the light of H J Heinz Co Ltd v Kenrick (2000) IRLR 144.

The EAT went so far as to comment that it was 'an odd practice which amounts to a self-denying ordinance in respect of information which the borough have properly sought and have obtained consent to obtain' that the employer did not make further enquiries of the physician as to the applicant's medical history.

The examination and the purpose for which consent was given about the applicant's medical position was to enable the employer to reach a decision as to whether or not she would be given a job.

The physician was not bound by any duty of confidence owed to the applicant not to disclose details of her medical history to the employer.

VictimisationLedeatte v London Borough of Tower Hamlets (IRLB 649, p18) The EAT ruled that an employee claiming to have been victimised had, in order to establish the necessary causal link between the less favourable treatment complained of and the previous complaint brought under the Race Relations Act, to show that the individuals she said mistreated her had actual knowledge of that protected act.

Without such knowledge, it could not be shown that the less favourable treatment was 'by reason that' she had done the protected act.