Disability

Employment Law – Disability Discrimination – Validity of Chairman’s Decision – Grievance Procedure – Was the Grievance Submitted Out of Time?  - Extension of Three Month Period in which to Submit Tribunal Claim - Disciplinary Hearing – Suspension – Dismissal on Grounds of Gross Misconduct – Unfair Dismissal

The case of Department of Constitutional Affairs v Jones [2007] is a court of appeal decision concerning disability discrimination where an employee suffered from a major depressive disorder. The employee in this case was employed as a justices' clerk by the employer's predecessor.

On the 28^th of July 2004, he was suspended from work on grounds of serious misconduct. Subsequently, he filed a grievance against his suspension. Due to the fact that the employee was negatively affected by the allegations made against him, in the period of time following his suspension he suffered from a major depressive disorder.

Grievance and disciplinary proceedings were subsequently arranged for November 2004, however, they were postponed on account of the employee's ill-health. The proceedings were accordingly re-scheduled for January 2005.

The employee remained seriously ill and sought an adjournment of the grievance and disciplinary proceedings on the grounds outlined in his medical evidence. On the 21^st of January, an opinion by a consultant occupational physician, who was advising the employer at the time, concurred with the view that the employee was not fit to attend the hearings.

Furthermore, during January, three letters were sent to the employer by solicitors and trade union representatives on behalf of the employee. The letters all made express reference to the Disability Discrimination Act 1995 (“the 1995 Act”) and reminded the employer of its duty not to discriminate against him. They also reminded the employer of its duty to make reasonable adjustments. In addition, the letters suggested that to force the employee to attend the hearings was unlawful.

Despite the letters, the employer conducted the hearings in the employee's absence. An appeal hearing was also conducted in the employee's absence, and his appeal was dismissed on the 1^st of March. It should be noted that his grounds of appeal made no mention of the 1995 Act.

As a result, the grievances were largely rejected. On the 28^th of January 2005, the employee was dismissed on grounds of gross misconduct.

Subsequently, the employee presented a claim before the employment tribunal alleging that he had been treated unfairly. On the 15^th of July 2005, the employee presented a claim under the 1995 Act. He argued that the employer's conduct of the following had been discriminatory:

§   The investigation;

§   The grievance;

§   The disciplinary hearing; and

§   The appeal.

Although it appeared at a first glance that the claim was out of time, the employee submitted that such a claim should be deemed to be made in time because he had submitted a grievance about the manner of his treatment. He argued that the effect of that grievance had been to extend the time limit by three months.

Several issues fell to be determined by the tribunal.

The tribunal came to the decision that the time limit which was applicable to this case was three months. However, it was held that it was just and equitable to extend that time limit to allow the employee's claim to proceed.

The chairman of the tribunal stated that it was hard to find conclusive facts on the circumstances of the case other than that the claimant had been exhibiting classic symptoms of depressive illness. Furthermore, the symptoms were supported by medical evidence. He did not find that the factor of the claimant obtaining legal advice, and the promptness with which he had acted, as pertinent.

The employer appealed to the Employment Appeals Tribunal (“EAT”), and the employee cross-appealed.

The EAT upheld the decision of the tribunal. It was held that the tribunal's reasoning had fairly dealt with the difficult issues of fact in the instant case. However, the employer appealed against this decision.

The employer argued that the tribunal had failed to take a number of relevant matters into account, meaning that the tribunal's decision should be considered perverse in such circumstances. In addition, the employer submitted that if a person who was mentally capable made a decision not to bring a claim within time, then that person should be bound by it.

The appeal was, however, dismissed.

It was held that the chairman’s approach to the evidence had been well thought out. He had very carefully weighed up the factors, had taken into account the correct test, had been honest and straightforward regarding the difficulties faced and had expressed his doubts succinctly.

This meant that the reason for his decision was well explained.

The employee was reluctant to acknowledge that he was so mentally ill as to be considered disabled, and his dismissal had set a time limit running which expired before he was ready to admit to himself and to others that he was a person with a disability. Accordingly, the chairman had had in mind questions which customarily were relevant in such circumstances.

It was held that he had been entirely justified in saying that obtaining professional advice was not pertinent. Furthermore, once the chairman had analysed the situation and formed his conclusion, he was entitled to conclude that the promptness of the employee’s actions, once he knew of the facts which gave rise to the action, also had not been pertinent.

For these reasons the chairman had reached his conclusion that the claimant was not able to admit either to others or himself that he was a disabled person within the meaning of the 1995 Act. Accordingly, the chairman had been perfectly justified in reaching the decision he had on the particular facts, considering the combination of circumstances having a bearing on the case.

If you require further information please contact us at [email protected] or Visit http://www.rtcoopers.com/practice_employment.php

© RT COOPERS, 2008. 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.