Case law updates

Disability discrimination: In an interesting case where the claimant suffered periodic episodes of paranoid delusions, the Court of Appeal has been considering the ‘substantial and adverse long term effects’ element of the definition of ‘disability’ in the Equality Act and has upheld the tribunal’s judgment that the claimant was not disabled. Although the claimant’s episodes were in existence over many years, the substantial and adverse effect was limited to two major episodes, lasting four to five months in 2013 and another lasting three to four months in 2017, and there was no medical evidence suggesting that, after either, the substantial effect was likely to reoccur. This case is a reminder that periodic illnesses will not necessarily fulfil the definition of disability, and the fact that a condition has reoccurred does not necessarily mean that it was likely to, or that it is likely to again. Employers should ensure they have a complete understanding of the medical position, including any prognosis, when managing staff with potentially recurring conditions. (Sullivan v Bury Street Capital Ltd)

Disability discrimination: In a case looking at elements of the definition of disability, the Employment Appeal Tribunal (EAT) has determined that the test of whether an impairment adversely affects day-to-day activities is an objective one. In this case a claimant (who had epilepsy and vitiligo) refrained from coffee, alcohol, sunlight, cosmetics, cleaning products and prescribed medication believing they contributed to her conditions, despite there being no medical evidence to support her contentions. As she pleaded her case on physical rather than mental impairments, the EAT concluded that it was appropriate to exclude her coping mechanisms when assessing whether her impairments in fact adversely affected her day-to-day activities. The question of ‘disability’ has been referred to a new tribunal. (Primaz v Carl Room Restaurants t/a McDonalds)

Unfair dismissal: Upholding the tribunal’s decision, the EAT held that a misconduct dismissal was outside the band of reasonable responses, and therefore unfair, in circumstances where the claimant was not given an opportunity to respond to the specific allegations being relied upon. This is a reminder that a reasonable investigation and disciplinary process must involve getting the claimant’s version of events. This case was also of interest as an example of the claimant being reinstated, a remedy that employers can often overlook as a possibility. (London Borough of Hammersmith v Keable)

Working time: The Working Time Regulations 1998 (WTR) specifically exclude training time (where it is conducted by a training provider or educational institution) from the definition of ‘working time’. However, a recent decision of the European Court of Justice (ECJ) suggests that the Working Time Directive (on which the WTR are based) goes wider than this, and that time spent undertaking mandatory vocational training at the premises of an external training provider outside normal working hours is ‘working time’. As a post-Brexit decision, the ECJ’s judgement is not binding in the UK but the courts and tribunals may have regard to it if considering similar issues. Employers who exclude training time from working time should therefore be mindful of this development. (BX v Unitatea Administrativ Teritoriala D).

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