July 11 2005 Employment Law Enews

Welcome to the latest edition of employment law enews. In this edition we look at issues surrounding the Disability Discrimination Act 2005; Whistleblowing and Equal Pay.

The Scope of "Mental Impairment" under the Disability Discrimination Act 2005

The Employment Appeal Tribunal has recently passed a judgement on whether "mental handicap" or generalised learning disorders can amount to a disability.

In the case of Dunham v Ashford Windows the Employment Appeal Tribunal decided that generalised "learning difficulties" can amount to a disability for the purposes of the Disability Discrimination Act 2005, if they have an adverse effect on the employee's ability to carry out normal day to day activities, notwithstanding that they do not amount to a clinically well recognised illness. Further, there is no absolute requirement that evidence of a disability must be provided by a doctor.

Mr Dunham was employed by Ashford Windows Ltd as a fork lift truck driver in September 2002.He was then dismissed in December 2002. He complained to the Employment Tribunal that their dismissal and failure to make reasonable adjustments amounted to disability discrimination.

It was the Respondent's case that Mr Dunham did not have a clinically recognised mental illness amounting to "a mental impairment", that they had done all they could but that he was unable to do his job in a safe manner and he was therefore dismissed.

The Employment Appeal rejected Mr Dunham's claim on the basis that the evidence did not prove a specific mental impairment or clinical condition and was not provided by a doctor.

The appeal was allowed to the extent that the Employment Appeal Tribunal ruled that as a matter of law it was not necessary to establish a specific mental impairment or clinical condition for a person to suffer from a mental impairment within the Act.

The case was remitted back to the Employment Tribunal to consider whether his impairment had a substantial and adverse effect on his day- to- day activities.

The Employment Tribunal made it clear that general learning difficulties if sufficiently serious can amount to a mental impairment.

Employers should note that under the Disability Discrimination Act 2005, the requirement for a mental illness to be clinically well recognised will be abolished in any event. This is expected to come into force in December 2005.

Whistleblowing - Employers be warned!

The Employment Tribunal has awarded a record figure of £477,000 in the case of Lingard v HM Prison Service as compensation to an employee who was unfairly dismissed for having made a protected disclosure.

Mrs Lingard was a senior prison officer who claimed constructive dismissal and victimisation for whistleblowing against HM Prison Service, in reporting incidents of prisoners being bullied. Mrs Lingard served 15 years as a prison officer and had an outstanding professional record.

At the hearing Mrs Lingard's claim for constructive dismissal was upheld on the ground of a protected disclosure. The tribunal has now given judgement in this case and has awarded Mrs Lingard a basic award of £3,915, a compensatory award of £470,687.90 and a further £3,000 in respect of injury to feelings.

It was held that the employer had made a deliberate decision to reveal the employee's identity and therefore had not acted in accordance with their duties in protecting their employee from the consequences of the disclosure.

This is a stark warning to employers of the consequences of failing to properly manage whistleblowing claims in the work place. Awards for this type of unfair dismissal claim are uncapped.

Equal Pay - What Constitutes 'like work'?

An Employment Tribunal has recently rejected an argument that there cannot be 'like work' when a women is found, as a fact, to be doing more work than her male comparator.

HHJ Wakefield held in Hope v SITA (UK) Ltd " that on any purposive construction of the Act , the fact that a promoted woman undertakes more duties than her male predecessor cannot result in a conclusion that the two are not undertaking like work in order to justify her being paid less."

Mrs Hope was promoted to the position of Group Purchasing Manager, which a man had previously done, but she was not paid as much.

This is clearly a sensible decision. An Employer should not be able to argue that an employee doing more work than a comparator is not doing like work.

This article copyright © 2005 Steeles Law llp. All rights reserved.