H J Heinz Co. Ltd V Kenrick [2000] IRLR 144
The relatively short life of the Disability Discrimination Act 1995 has been marked by a series of contradictory decisions. Some have moved the interpretation of the Act forward in a progressive and purposive way, others have retreated back into narrow, limiting analyses.
The decision of the Employment Appeal Tribunal in HJ Heinz Co Ltd v Kenrick appears to move the law both forward and back at the same time.
Mr Kenrick had been ill and off work for nearly a year, when he was dismissed. At the time of the dismissal, Heinz were not aware of the diagnosis of chronic fatigue syndrome ("CFS"). Following his dismissal, Mr Kenrick brought a claim for unfair dismissal, and disability discrimination. The Employment Tribunal found in his favour, concluding that the Company knew of the symptoms, and therefore had knowledge of his disability at the time they dismissed. No satisfactory explanation had been put forward as to why they had dismissed him just a few weeks before he was due to see a consultant, and also no satisfactory evidence had been led as to why they had not considered part-time or lighter duties for him. Accordingly, the Tribunal found that the company had not justified the dismissal under the 1995 Act. They also went to hold that as a result of this conclusion, the dismissal was also unfair.
The Employment Appeal Tribunal deal succinctly with the unfair dismissal point: there is nothing in either the Employment Rights Act 1996 nor the Disability Discrimination Act 1995 which states that a dismissal which is in breach of the 1995 Act is automatically unfair. A Tribunal therefore has to consider separately whether a disability related dismissal is fair in all the circumstances, in the usual way under section 98(4) of the 1996 Act. A finding of a breach of the 1995 Act is not conclusive in the context of unfair dismissal.
In relation to the Disability Discrimination Act findings, the Appeal Tribunal decide that an employer does not need to know of the disability, or the material features of it, before they can be found to have discriminated against a disabled employee in terms of Section 5(1) of the 1995 Act. In this case, the fact that Heinz were not aware of the diagnosis of CFS (even though they were aware of the symptoms) did not mean that they could not discriminate. In fact, the Appeal Tribunal go further than this. Even if an employer is unaware of the symptoms, they may still be liable since the test is an objective one: all that matters is that the employee is disabled and the discrimination relates to the disability. So in this clear and unequivocal statement, the baleful decision of O'Neill v Symm & Co 1998 IRLR 233 is at last overturned.
So far so good. The less helpful aspect of the decision relates to the standard of justification required to be shown by employers under section 5(1). Although upholding the Tribunal's decision that the Company had discriminated against Mr Kendrick, the Appeal Tribunal emphasise the point that the 1995 Act only requires the justification of an apparently discriminatory act under section 5(1) to be "material to the circumstances of the particular case and substantial", with substantial meaning no more than "not just trivial or minor". If therefore the previous case of Baynton v Saurus General Engineers Ltd (LELR 42, [1999]IRLR 604) suggested more than this, with its "balancing" of interests between the employer and employee, then it overstated the case.
This decision does limit the impact of section 5(1) quite considerably. "Not just trivial or minor" is an easy threshold for employers to establish. More or less any consideration can be neither trivial nor minor, regardless of the devastating consequence that the decision might have on an employee.
This is a disappointing decision, and hopefully not the last word on the matter, since a more purposive interpretation of the Act could well have reached a different conclusion.
Nonetheless, pending another decision pointing the other way, the clear lesson to be learned from the Heinz v Kendrick case is that Applicants should not just rely on section 5 (1) discrimination. In more or less all cases, a failure to adjust under section 5 (2) should also be included. Under section 5(2), the test of justification is expressly subject to the specific and demanding considerations of section 6. Given that these considerations are spelt out in the Act itself, and elaborated upon in the Code, the section 5(2) duty of adjustment will impose a much tougher duty on employers to accommodate employees with disabilities. As a result of this Heinz case, it is section 5(2) which will now assist and protect employees with disabilities in the purposive and constructive way that the Act intended. Section 5(1) will only be of use in those few cases where the employers' conduct is unreasonable and cannot be justified in any rational way.