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Range of Reasonable Responses Newsletter January 2019

Well Happy New Year etc. I took a break over the festive period, but employment law didn't. The last edition concentrated on some cases that I thought had the potential to be classics - and it already needs updating. First of all I am grateful to those who pointed out that the case of Agoreyo v London Borough of Lambeth, is indeed going to the Court of Appeal. This is the case concerning the teacher who was suspended from work after accusations of using inappropriate force with two young but 'challenging' children. She resigned the same day and successfully argued in the High Court that the suspension amounted to a fundamental breach of contract. It seems that this will be heard by the Court of Appeal at the end of this month and I am hopeful that we will get some clarity about when it is appropriate to suspend an employee accused of misconduct. 

The other development in December was the result in the case of Williams v Trustees of University of Swansea Pension Scheme. This was disappointing. Not because the Supreme Court upheld the Court of Appeal's finding that there was no unfavourable treatment of an employee whose early retirement benefits were based on the part-time salary to which he had moved as a result of his disability, but because they really didn't go into enough detail about what 'unfavourable' means. Lord Carnwath's decision (with which the other members of the Court agreed) simply rules that there was nothing 'intrinsically' unfavourable about the pension the employee was given. This leaves unresolved the wider issue of how the concept of unfavourable treatment relates to less favourable treatment used elsewhere in the Equality Act. The use of the term  'unfavourable treatment' in disability discrimination was intended to make discrimination easier to establish by removing the need for difficult comparisons, so it is a pity that the Supreme Court have left so many open questions about what the term means. I have written about the issue in more detail for XpertHR here.

A tendency to steal

One of the cases that will feature in the employment law updates I will be delivering throughout this year is Wood v Durham County Council. It concerns the meaning of disability and shows, I think, that the law has taken a wrong turn. 

Mr Wood was an Anti-Social Behaviour Officer for the Council - having previously served as a police officer. The evidence was that he suffered from severe depression and PTSD. He was dismissed when his employer discovered that he had been given a Penalty Notice for Disorder after being caught leaving a chemists without paying for a number of items. The Penalty Notice came to the employer's attention because it led to Mr Wood being denied access to police stations - which obviously affected his work. 

He claimed that his dismissal amounted to disability discrimination. The Penalty Notice, he said, was something that arose in consequence of his disability. It was as a result of his depression and PTSD - which led to memory loss and a 'dissociative' state - that he had failed to pay for the goods in the chemists. He lost his case, however, because the Tribunal - and now the EAT - ruled that he was not disabled.

This was despite the fact that he had well diagnosed conditions - depression and PTSD - that certainly met the threshold of being long term conditions adversely affecting his ability to carry out day-to-day activities. Indeed it was accepted that in other circumstances, these conditions would have amounted to disabilities. The employer relied, however, on Reg 4 of the Equality Act (Disability) Regulations 2010. This provides that a number of conditions 'are to be treated as not amounting to impairments' and goes on to list a tendency to set fires, a tendency to steal, a tendency to physical or sexual abuse of other persons, exhibitionism and voyeurism. 

The employee, they said, was dismissed because of his tendency to steal and so he was therefore to be treated as not being disabled at all. 

Now this seems an odd proposition because he clearly was disabled. His PTSD was a free-standing condition. While it may have led to the incident at the chemist his impairment was not in itself a tendency to steal. Nevertheless the Tribunal and the EAT held that for the purposes of this claim he was to be treated as not having a disability. 

They relied on a 2005 EAT decision - Edmund Nuttall Ltd v Butterfield - which concerned exhibitionism. The employee in that case had been committing acts of indecent exposure for which he was dismissed and the EAT held that despite his diagnosis of depression he was not disabled for the purposes of his claim. Exhibitionism was an 'excluded condition' (under the predecessor to the 2010 Regulations)  and the alleged discrimination was nothing to do with his legitimate disability. 

I remember this case well (the facts are quite unusual!) and was struck at the time that the EAT's distinction didn't tally with how the then Disability Discrimination Act was structured. The Act clearly separated the issue of whether or not an individual was disabled from the question of whether or not there had been discrimination. In Butterfield, however, the EAT had merged the two issues and held that the employee was not disabled because the discrimination was directed at a tendency that was deemed not to be an impairment. That approach was followed in the 2009 case of Governing Body of X Endowed School v Special Education Needs and Disciplinary Tribunal which accepted that an individual may have both a 'protected disability' and  an 'excluded condition' and that the question was which of these the alleged discrimination was directed towards.

In Wood v Durham County Council the EAT also relied on the statutory guidance issued under the Equality Act. This provides:  
"A13.   ...The exclusions also apply where these tendencies arise as a consequence of, or a manifestation of, an impairment that constitutes a disability for the purposes of the Act. It is important to determine the basis for the alleged discrimination. If the alleged discrimination was a result of an excluded condition, the exclusion will apply. However, if the alleged discrimination was specifically related to the actual disability which gave rise to the excluded condition, the exclusion will not apply. Whether the exclusion applies will depend on all the facts of the individual case."

Now that essentially repeats the analysis in Butterfield. So it is understandable that the EAT felt bound to uphold the finding that Mr Wood was not disabled. 

But I still think that is wrong. When it comes to legislation, words matter and should be read precisely. the 2010 Regulations say that tendencies to set fires, steal etc 'are to be treated as not amounting to impairments'.  They do not say that someone is to be treated as not being disabled 'in so far as the alleged discrimination is based on one of those tendencies'.  The more straightforward reading of the exclusion is that Mr Wood's alleged tendency to steal cannot in itself amount to an impairment for the purposes of establishing that he has a disability.

And on his case, he doesn't need it to. One thing that is completely clear is that he has a disability that is quite distinct and separate from any tendency to steal. He does not rely on a tendency to steal as showing that he is disabled, he has a medical diagnosis of PTSD to do that for him. Under s.15 the question should be whether his dismissal was because of something arising in consequence of that disability and whether, if so, the employer's actions were justified. Instead the EAT says that because stealing was the reason for dismissal he is to be treated as not disabled at all - so the claim fails irrespective of whether or not the employer's actions were justified. This goes way beyond what the Equality Act actually says. There is simply no basis in the Equality Act for dividing a disability into 'protected' and 'excluded' parts - a claimant is either disabled or not. The statutory guidance - which is supposed to be used to give examples of impairments that could reasonably be described as substantial or long-term - should not be used to effectively re-write the provisions of the Act itself. The case law on which the guidance is based is just wrong.

This is not to say that Mr Wood's claim should succeed. The employer will surely have a strong argument that it can't employ an anti-social behaviour officer who is not allowed access to police stations. But this decision circumvents the employer's need to justify its actions and I don't think that is the right approach. If I were Mr Wood, I would appeal.

Rant over. I feel better now - thanks. 

Parish Notices

The first quarter of 2019 promises to be a really busy one, with trips to Halifax, Lancashire, Derbyshire, Melton Mowbray, Dundee, Jersey and quite a few visits to London. I'm always happy to travel to talk about employment law so if you think you would benefit from a day's specialist training then get in touch. You can see the sort of thing I do here.

For those in local government I have two public events coming up with the Local Government Association. The annual employment law training event is on 13 February in London and you can book here. For those in the East Midlands, I am running an employment law update on 13 March - details here

That's all for this month. Thanks for subscribing and do feel free to share this Newsletter with anyone who you think might find it useful.


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