R M O'Neill v Symm & Company Limited (2700054/97 11/6/97) (Unreported)
Industrial Tribunal
Hopkins v ERF Manchester Limited (2400863/97 28/4/92) (DCLD 32 Summer 97) Industrial Tribunal
Schanz v Herefordshire Community NHS Trust settlement

The employment provision of the Disability Discrimination Act 1995 have been in force since 2 December 1997: how is the case law developing?

Not very quickly. So far we have come across only two Industrial Tribunal decisions, both of which were unsuccessful, and a widely reported settlement of £16,000. Many of the Tribunal regions appear to have adopted a policy of holding a preliminary hearing to establish whether the Applicant is disabled within the meaning of the Act.

This may account for the lack of case law so far. Over 300 cases have already been issued nationwide under the DDA.

O'Neill is a very significant Industrial Tribunal decision because, although the Applicant did not succeed, the Industrial Tribunal found that ME (Mialgic Encephalomyelitis) or Chronic Fatigue Syndrome or Post Viral Syndrome, not only exists but amounted to a disability in this case. The IT heard evidence from two ME Specialists and had the written report of Ms O'Neill's GP conÞrming the diagnosis. The IT found that Ms O'Neill was dismissed after three months for sickness absences. But they also found that, as her employer did not know that she was disabled, they could not have discriminated against her.

The dismissal, they said, was related to the absences, not the fact that the Applicant was absent with a disability. It will be for the Employment Appeal Tribunal to decide whether this is a false distinction.

It is also debateable whether an employer's state of knowledge about an employee's disability is relevant. As in sex discrimination cases, if the Tribunal finds that the Applicant is disabled, and that employee has been treated less favourably than non-disabled staff, should it matter whether or not the employer knew that the employee's condition amounted to a disability under the Act?

In O'Neill's case the employer did not know that she had ME. If they had known, but had not appreciated that it was a disability under the DDA, then they may not have had a defence.

If this decision is upheld or followed in other cases it may encourage employers to adopt a position of wilful ignorance of the condition of their workforce. It may also place employees in a dilemma: do they disclose they have a disability?

In Hopkins the applicant suffered from rheumatoid arthritis. His treatment meant he needed an apprentice to complete jobs. He was dismissed with less than two years service as the company wanted to save costs. Mr Hopkins was selected because he was inefÞcient due to his incapability.

He failed to establish in the IT that his condition amounted to a disability under the Act. The tribunal found that although the condition was adverse, its effect was not substantial.

Hopkins represented himself and did not bring expert medical evidence to the tribunal. The burden of proving disability falls upon the Applicant and Hopkins underlines the importance of bringing sufÞcient evidence to the Tribunal to establish the disability.

More encouragingly, other cases are succeeding through negotiated settlement of Tribunal proceedings. In another ME case, supported by MSF, Alison Schanz received a £16,000 out of court settlement from Herefordshire Community NHS Trust. She was dismissed after a ten month absence, but at a time when her doctors had certified her fit for a gradual return to work. Her case was brought by the Thompsons Birmingham office.

The Schanz case should be a welcome reminder to employers that, whatever its shortcomings, the DDA can lead to awards of substantial damages.