April 2013 case update

case updatesDisability Discrimination – cause and effect of obesity

Summary: In considering whether a person is disabled, should the focus be upon the cause of the person’s symptoms (such as obesity) or upon their effect? It is the latter, says the EAT in the case of Walker v Sita Information Networking Computing Ltd, which is available here.

Facts: Mr Walker, who weighed over 21 stone, brought a discrimination claim against his employer on grounds of disability. He suffered from numerous health problems, including asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach complaints, anxiety and depression. These were compounded by his obesity and led to multiple symptoms which affected his daily living, such as pains in his head, abdomen, leg, feet, constant fatigue, and poor concentration and memory.

The Tribunal found that he was not “disabled” within the meaning of disability discrimination legislation (now contained in the Equality Act 2010) and noted that an occupational health specialist had not been able to identify a “physical or organic cause” for his conditions other than his obesity.

Mr Walker appealed to the EAT.

The EAT rejected the Tribunal’s approach and held that Mr Walker was disabled. The EAT stressed that a Tribunal should not focus on what the cause of an impairment may be – it did not matter that there was no pathological, underlying cause (or causes) of the claimant’s various impairments. The Tribunal had to consider if the mental or physical impairments were genuine and that the other constituent parts of the definition of “disability” were met. However, the EAT rejected Mr Walker’s argument that his obesity in itself rendered him disabled.

Implications: Obesity is not in itself a “disability” for discrimination law purposes. It is the impairments themselves that must be considered and it is not necessary to establish the cause. Therefore obesity may make it more likely that an individual has impairments sufficient to bring him/her within the definition of disability.

Employers should note from this case that the obligation to comply with disability discrimination law, such as the need to make reasonable adjustments, will apply even in cases where an employee’s medical condition stems from obesity. There may be instances where an employee is no longer able to carry out his/her role due to having gained weight and employers should take care making a decision about making reasonable adjustments and continued employment.

Statistics show that over 60% of adults in the UK are obese and, in 2010, research showed that children in the UK were spending double the amount on sugary products, snacks and treats as those living in the United States. Further, this case mirrors the developing trend in the US, where the notion that obesity amounts to a disability under law is gaining momentum. In light of this employers might want to consider what steps they can take, not just to deal with obesity-related issues, but to prevent them in the first place: such as encouraging exercise and healthy eating through a variety of initiatives such as cycle to work schemes, discounted gym membership and providing free fresh fruit at the office.

Redundancy – the search for truth…

Summary: Can employers establish at Tribunal that the reason for a dismissal is redundancy even if they also have held concerns about the employee’s performance or conduct? Yes, says the EAT in two recent decisions.

The cases: 1. Malekout v Ahmed & ors (t/a The Medical Centre) and 2.Fish v Glen Golf Club are available here and here.

Facts:

  1. Mr Malekout, after 13 years of employment as practice manager, gave a letter to the Medical Centre requesting a formal meeting to discuss his position and stated that he had received a job offer. The partner of the Medical Centre was concerned that she would be left without a practice manager. Therefore the partner wrote to Mr Malekout confirming that she thought it would be best if his employment terminated at the end of the month and she would look for other practice managers. Mr Kader was then appointed as an interim practice manager on a short term basis. However, Mr Malekout then decided to remain at the practice, effectively leaving the employer with two people for the one position of Practice Manager.Mr Kader very quickly took on more and more of Mr Malekout’s duties within the practice and identified that the latter had not completed certain tasks. The Medical Centre invited Mr Malekout to an appraisal (his first in 13 years!) and set out that it had serious concerns over his performance and that it was clear that trust and communication had broken down. Following his appraisal, Mr Malekout went off sick. While he was away, the practice undertook a restructure and Mr Malekout was dismissed by reason of redundancy.Mr Malekout brought a claim for unfair dismissal (along with other claims which did not succeed), arguing that his role was not redundant as the Medical Centre had effectively appointed his replacement before dismissing him. The Tribunal held that, following Mr Malekout’s threat to leave, Mr Kader was appointed as a safety net. This meant that, at the time of Mr Malekout’s dismissal, the Medical Centre had two practice managers and, going forward, it only needed one and that this was therefore a genuine redundancy situation. The Tribunal went on to find that Mr Malekout’s redundancy dismissal was procedurally unfair. However, given the existence of the genuine redundancy situation, the Tribunal reduced his compensation by 100% to nil, on the grounds that a proper procedure would have led to the same outcome, namely a redundancy dismissal.Mr Malekout appealed, but the EAT rejected his appeal. The EAT held that, where the practice had two individuals in the role of practice manager, it was inevitable that the number of employees would reduce to one. This was despite the fact that effectively Mr Kader had been kept on in order to troubleshoot Mr Malekout’s incompetencies.
  2. Mr Fish was employed by Glen Golf Club as its secretary between 1999 and 2008. In April 2008 he was dismissed, purportedly by reason of redundancy. From 2006, the club started to make significant losses and in 2008 a management consultant was commissioned to write a report about how to improve the club’s financial position. The club took up the consultant’s key recommendation, that there should be a substantial reduction in the salary bill. In March 2008 the club decided to restructure and make some redundancies. A decision was made to create a part-time golf services manager in place of the previous management, including the secretary. Mr Fish’s post, amongst others, was identified as being at risk of redundancy. Mr Fish was given notice of termination on 11 April 2008. Although he was sent details of new positions, including the post of office manager, he did not apply for any in time. Mr Fish appealed against his dismissal and was unsuccessful.Mr Fish brought a Tribunal claim for unfair dismissal.Mr Fish argued that redundancy had been a pretext for his dismissal and the real reason was his employer’s view of his conduct and capability. In support of this argument, Mr Fish pointed to a previous draft of the management consultant’s report which criticised his performance (this had been deleted in the final version). However, it was still the club’s case that its overheads were vastly exceeding its income and the best way to cut the costs would be to eliminate certain high paid positions of employment from the management structure. The Tribunal accepted the club’s position and held that Mr Fish was dismissed by reason of a genuine redundancy situation.Mr Fish appealed to the EAT on the basis that the Tribunal’s decision was ‘perverse’. The EAT rejected the appeal and stressed the high threshold when arguing perversity. The EAT said that one way of putting it was that, for the argument to succeed, the Tribunal’s decision “must be such as to cause astonished gasps from the well-informed observer“. In the EAT’s opinion the facts of this case would not provoke such a reaction.

Implications: These cases are helpful to employers in that the existence of concerns about performance or conduct does not rule out a redundancy dismissal being accepted by a Tribunal. Further, the EAT will be slow to interfere with a Tribunal’s assessment of causation so long as it has properly considered all the facts.

However, be warned that the Tribunal will generally carry out a thorough investigation of the evidence before it decides on what grounds an employee has been dismissed and it is too simplistic to conclude that a Tribunal will not look behind the employer’s reason for making a redundancy. It can very much be ‘pot luck’ as to what a Tribunal may decide – the Malekout case, in particular, could very easily have been viewed as the employer engineering a sham “redundancy” scenario to dismiss a poorly performing employee and a different Tribunal might well have viewed it as such.

Overall, both cases seem to point to the fact that, although Tribunals will look behind an employer’s reason for making a redundancy, they may not deliberate too hard on questions of causation, where redundancy is one of two or more plausible reasons for dismissal. Therefore employers should carefully document the background to such dismissals so that it can be clearly seen that redundancy is the principal reason for the termination.