Employers Cannot Delegate Decisions on Disability

In a guideline decision, the Court of Appeal has ruled that employers cannot simply rely on the word of external advisers – no matter how well qualified – when deciding for themselves whether members of staff are, or are not, disabled.

Whilst recognising that its decision ‘may seem hard’ and places tough requirements on employers, the Court found that unreasoned advice given by respected occupational health consultants was ‘with respect, worthless’ and could not be ‘unquestioningly adopted’ by a local authority employer.

A grounds maintenance officer had suffered a lengthy history of debilitating symptoms which the consultants had consistently described as a ‘stress-related illness’. After periods of sick leave, and several abortive attempts to return to work, the officer was eventually dismissed after colleagues accused him of bullying and said that they would not work with him.

He launched Employment Tribunal (ET) proceedings and was awarded more than £60,000 in compensation after his unfair dismissal claim succeeded. However, his disability discrimination claim failed after the ET ruled that, prior to his dismissal, the local authority had had neither actual, nor constructive, knowledge that he was in fact severely depressed and, therefore, disabled. The officer’s challenge to that decision was subsequently dismissed by the Employment Appeal Tribunal.

The local authority had denied any failure to make reasonable adjustments and argued that it was entitled to rely on the advice of the consultants, who had at no point diagnosed that the officer was suffering from a mental impairment which was likely to have a substantial and long-term adverse effect upon him.

However, in allowing the officer’s appeal and remitting his discrimination claim for fresh consideration by the ET, the Court emphasised that the local authority’s duty to decide whether he was disabled was non-delegable.  The consultants’ ‘unreasoned opinion’ that he was not suffering from a disability was ‘worthless’ and the local authority was not entitled to adopt it without question.

The Court concluded, “This case illustrates the need for the employer, when seeking outside advice from clinicians, not simply to ask in general terms whether the employee is a disabled person within the meaning of the legislation but to pose specific practical questions directed to the particular circumstances of the putative disability. The answers to such questions will then provide real assistance to the employer in forming his judgment as to whether the criteria for disability are satisfied.”

Oil Trader Justifiably Sacked after Heavy Night Out

An highly paid oil trader, who was sacked because he was said to be not in a fit state for work after a heavy night out during a business trip to Singapore, has failed in his High Court wrongful dismissal claim after a judge described his case as ‘ludicrous’ and said that it should never have been advanced.

The trader was summarily dismissed for serious misconduct after missing a series of crucial meetings on the day after his night on the town. He had admitted being out until 4.30am and, although he insisted he drank no more than others, his behaviour was said to be the latest in a series of alcohol-related incidents.

Throwing out the trader’s claim, and ordering him to pay six-figure legal costs on the indemnity basis, the Court ruled, “This is about as abnormal a case of this type that one could imagine. There was no conceivable justification for any claim being made at any point.”

Pointing out that he worked in an industry where a decimal point in the wrong place could result in huge losses, his employers argued that his habitual drinking could not be tolerated. He had been offered professional help in beating his problem but was said not to have co-operated.

Describing the trader’s attendance record as ‘appalling’ – having been absent or late at least 20 per cent of the time during his service in London – the employers, who had spent ‘the best part of £400,000’ defending the case, had viewed his claim as ‘a slap in the face’. His failure to attend the meetings in Singapore had been the final straw.

The trader claimed that he was not drunk but had stayed in bed as he had consumed too much and had deliberately chosen not to attend at least one of the meetings, which were said not have been compulsory. However, the Court found that he had taken no steps to limit his alcohol consumption or to seek help, but had simply continued on his existing path, paying no regard to the adverse impact on his employers.

The judge concluded, “If, which I doubt, he did not simply sleep through the meetings which he missed, but consciously decided not to attend them, that in itself amounted to repudiatory breach of the contract which his employers were entitled to accept by dismissing him summarily.”

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