Employment Law – Discrimination – Disability Discrimination - Award
In the case of Fletcher-Cooke v The Board of Governors of Hampton School and another [2007], the employee was employed by the School from September 2001 as a Mathematics teacher. In November 2002, he became ill but continued to work for a short period until certified by his GP as unfit to continue working. He was off work until he was summarily dismissed on 4 July 2003.
It transpired that from 1989 the employee had bipolar II disorder which was not diagnosed until March 2004. He brought a claim before the employment tribunal and the tribunal held that he had been subjected to a number of acts of discrimination by his then employer as well as unfairly dismissed due to his disability.
After a remedies’ hearing the tribunal made various awards in his favour. With regards to an award in respect of future losses, the tribunal correctly referred to the appropriate loss of chance test, but then went on to mention the balance of probabilities test. The employee appealed against the award granted by the tribunal in relation to his future losses – he questioned whether the correct test had been applied. The case got very complex as there were appeals and cross appeals against various decisions made by the tribunal to the Employment Appeal Tribunal (EAT).
The main issue that the EAT had to determine was whether the tribunal had correctly applied the law in determining the level of award that it had granted to the employee for future losses. It was accepted that the tribunal had correctly set out the law in relation to future losses. However, when it came to applying that law, what was in issue was whether it had erred by considering the balance of probabilities test also.
The EAT held:
§ ‘…In construing the reasons of a tribunal at appellate level, the guiding principle was that, if the tribunal had directed itself correctly on the law, and had reached a conclusion that had been open to it on the evidence, the use in other passages of language inappropriate to the direction it had properly given itself would not be allowed to vitiate the conclusion, unless the relevant words admitted of no explanation save an error of law….’
o ‘...In the instant case, it was clear that the tribunal, notwithstanding its reference to the balance of probabilities, had applied the correct test in determining the question of an award in respect of future losses caused to the employee….’
o ‘…The method of assessment employed was the proper method of assessment, and, furthermore, the findings made by the tribunal had been properly open to it on the material before it…. ‘
§ ‘…In respect of the employee’s remaining grounds of appeal, and the employer’s grounds on the cross appeal, all of the findings complained of had been findings that had been open to the tribunal, it having correctly directed itself on the applicable law...’
§ The appeals and cross appeals were dismissed.
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© RT COOPERS, 2007. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
