Greenwood v British Airways plc [1999] IRLR 600
Baynton v Saurus [1999] IRLR 604
Vicary v British Telecommunications plc [1999] IRLR 680
The Employment Appeal Tribunal has delivered a series of useful judgments under the Disability Discrimination Act. Two cases give further guidance on the correct approach to deciding whether or not an applicant is a disabled person. A further case establishes that the interests of disabled workers must be taken into account before an employer can defeat a claim by showing that its otherwise discriminatory behaviour was justified.
A person is disabled within the meaning of the Disability Discrimination Act if they have 'a physical or mental impairment which has a substantial and long-term adverse effect' on their ability to carry out normal day-to-day activities. An adverse effect is 'long term' if it lasts 12 months, if it is likely to last 12 months, if it is likely to last for the rest of the person's life, or if it recurred or is likely to recur more than 12 months after it first appeared.
In Greenwood v British Airways the applicant had a history of depressive illness for which he had received treatment. In May 1997, BA's senior aviation physician said that Mr Greenwood's treatment had been successful and that he was 'now fit and well'. He applied for promotion. Mr Greenwood agreed that at that time his health had not been affecting his normal day-to-day activities and that he was in a better state of health than before. Despite the improvement in his health, he was not selected for promotion when his application was determined in June 1997. Mr Greenwood was told that this was because he was viewed as unreliable in the light of his previous sickness.
His condition then deteriorated and he went off sick with depression in August 1997. He remained off work at the date of the tribunal hearing in March 1998. The Tribunal had to decide whether or not Mr Greenwood was a disabled person at the time of the decision not to promote him in June 1997. The Tribunal decided that, in June 1997, Mr Greenwood's treatment had been successful, that his condition had ceased and that it was not 'likely' to recur. Although the Tribunal accepted that his health did become worse just after he was refused promotion, it thought that it should decide whether his illness was likely to recur as things stood at the material time in June 1997 and that subsequent events should not be taken into account. Therefore, said the Tribunal, the subsequent recurrence of his condition was not relevant.
The EAT disagreed. They referred to the Guidance and said that the adverse effects of the applicant's condition up to and including the date of the Tribunal hearing should be considered. The original decision was said to be 'fatally flawed' because the Tribunal had ignored the impact of Mr Greenwood's condition after he was refused promotion. The EAT also decided that even if Mr Greenwood had not been a disabled person in June 1997, he had been disabled in the past and the effect of his disability had recurred after June 1997, more than 12 months after it first appeared. Therefore, he was entitled to the protection of the Act as a person who has had a disability under section 2. This important but often forgotten provision is particularly useful where an employee's sickness record is held against them long after they have fully recovered.
It has become common for Tribunals to receive evidence from a medical expert witness, and sometimes two, whenever a respondent denies that an applicant is a disabled person within the meaning of the Act. However, not every question under the definition of disability requires medical expertise. There has been a tendency for some doctors to give as much legal advice as medical opinion in their reports. This practice has been discouraged by the decision in Vicary v British Telecommunications. The EAT pointed out that there are limits to the matters upon which a medical adviser can give useful or relevant evidence. The EAT said that it is for the Tribunal to decide if an activity is a normal day to day activity or whether impairments were 'substantial' within the meaning of the Act. It is not for expert witnesses to express opinions on these matters. Instead, their evidence should be directed to matters such as the prognosis, the effect of medication and, if appropriate, their own observations of the applicant carrying out any relevant tasks or functions. This shows that it can be a mistake to rely too heavily upon the evidence of a medical witness in a case where disability is disputed.
In many cases, such as those about stress or depression, a medical witness will not be able to give much direct evidence about the impact of the condition upon a particular applicant's normal day-to-day activities. Instead, they will often have to rely upon what they were told by the applicant during any examination. For this reason it will usually be best to ensure that the applicant gives evidence of the effect of the condition upon his or her day to day life, to confirm and explain the account given in any medical report. The expert can then be asked to say whether or not this account is consistent with the condition which the applicant has.
The EAT decision in Baynton v Saurus on the employers' justification defence is especially welcome. Even when applicants prove that they have been less favourably treated for a reason related to their disability or that the employer has failed to make a reasonable adjustment, an employer may still prove that the less favourable treatment or the failure to adjust was 'justified'. If it was, it will not amount to unlawful discrimination and the claim will fail. This is likely to be the crucial issue in many cases.
In Baynton it was argued that when a Tribunal decides if less favourable treatment was justified, it should focus only the adequacy of the employers' reasons for its behaviour. The EAT held this approach would be wrong. It referred back to the wording of the Act which provides that treatment cannot be justified unless the reason for the treatment was substantial and material to the circumstances of the particular case. This, it said, must mean the circumstances of both the employer and employee. Rather than being ignored, the interests of the disabled employee must be balanced against those of the employer.
The EAT said that the Tribunal erred in deciding that Saurus General Engineers were justified in dismissing Mr Baynton because he could not do his job without considering all of the circumstances. In particular, the Tribunal should have taken into account the failure to warn Mr Baynton that he was at risk of dismissal and the failure to find out the up-to-date medical position, when these steps would have alerted the employer to the fact that Mr Baynton was due to see his consultant in the near future. The EAT relied upon the Code of Practice and the recommendation that employers should 'talk to each disabled person about what the real effects of the disability might be'. As these matters had not been taken into account, the case was remitted to the Tribunal for a proper consideration of all the circumstances.