REWARD INSIGHT
Disability, discrimination, dismissal
NicolaMullineux, senior employment specialist for Peninsula, reviews the decisions in three cases
Martin v University of Exeter In Martin v University of Exeter, the Employment Appeal Tribunal (EAT) was tasked with determining whether an employee’s medical condition met the necessary requirements to be considered a disability. Martin began displaying symptoms of a stress related condition in June 2015 and was unable to attend work from July. An occupational health (OH) report was arranged which in August 2018 concluded that the employee was not disabled as the adverse effects of his condition had only been present for two months. For a condition to be classed as a disability it must be ‘long term’, meaning it must have been ongoing for at least twelve months or ‘likely’ to last at least that long. In September 2015, Martin’s general practitioner (GP) diagnosed post-traumatic stress disorder (PTSD). He remained off work. In May 2016 another OH report was performed, which concluded that Martin was now disabled because the adverse effect he was suffering was likely to last at least twelve months. Following this, Martin raised a claim for disability discrimination dating to 2015. After reviewing available evidence the Employment Tribunal (ET) dismissed the claim deciding that Martin could only be considered as being disabled from April 2016, as there was no evidence before this date which could have ‘necessarily
predicted’ he would have had a disability by that time. However, as Martin had displayed these symptoms for nine months by April 2016, the ET determined it was reasonable to conclude they were likely to last for twelve months at this point, therefore satisfying the requirement for a disability then. ...staff showing signs of ill-health may qualify as being disabled at a later date Martin appealed claiming the ET had failed to properly apply the correct test set out in SCA Packaging v Boyle for establishing the likelihood of a disability. This test explains that the word ‘likely’ should be defined as something that ‘could well happen’, whereas the ET had used the words ‘necessarily predict’ when examining this case. However, the EAT dismissed the appeal, referring to the case Royal Bank of Scotland v Morris which stated the burden of proving disability lies on the claimant. The EAT held that the ET had used the word ‘necessarily’ in the context of the predictive nature of the exercise they were undertaking and was satisfied the correct decision had been
made based on the evidence available. This case should serve to remind employers that staff showing signs of ill- health may qualify as being disabled at a later date. Additionally, employees do not necessarily have to be adversely affected by a condition for twelve months to qualify as being disabled, so long as they can prove that this is likely to last for this length of time. In this case, the employer took the necessary steps to complete several OH reports in order to get a complete assessment of the employee’s condition. This is a good example of how carrying out the correct procedure when dealing with staff on long-term sickness could prove decisive in any tribunal disputes. Jayeola v Commissioners for HMRC In Jayeola v Commissioners for Her Majesty’s Revenue & Customs (HMRC), the ET was asked to assess whether an employer’s response to a complaint of race discrimination was in itself discriminatory. The employer, HMRC, which had a zero-tolerance policy towards race discrimination, routinely hired cleaning staff through third party contractor G4S. A written agreement between the two parties stated that all cleaners required HMRC’s approval to work there and that G4S were obliged to deal directly with any complaints regarding their conduct.
| Professional in Payroll, Pensions and Reward | March 2019 | Issue 48 34
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