Like everyone else, I have been rather fascinated by the case that was heard in the London Central Employment Tribunal last week in which a law student who is missing an arm from birth brought a claim against Abercrombie & Fitch alleging disability discrimination. This case has it all - glamour, intrigue and cardigans! The fact that she has received so much support from the usually disability-lukewarm media is interesting in itself. It seems that the more straightforward varieties of disability discrimination, in which reasonable adjustments are neither possible nor necessary, are easier for people to identify with.

Legally speaking, I do not have a great deal to say about this case at the moment. Instead, I refer you to my blogging colleagues, PJH Law, Usefully Employed and Jobsworth for their analyses. Like the Tribunal, I shall reserve judgment. My feeling is that this case potentially raises a lot of intriguing legal issues and I would like to see what happens before I say any more. Let us hope this is not one of those cases that engages the media throughout the hearing but in which they forget to report the outcome.

There will be more dark law soon but I am starting a new feature today which looks at decisions from the history of employment law. Many are forgotten but they sometimes have an unexpected relevance for the controversies of today. The first year I have selected is 1998, when the first appellate cases on the Disability Discrimination Act began to appear. These cases were decided before the judgment of the Court of Appeal in Clark v Novacold and that of the Employment Appeal Tribunal in Heinz v Kenrick. Therefore, they arguably provide an insight into how things could develop following Malcolm, in which both of those cases were disapproved. To set the scene, in 1998, Bill Clinton admitted to an affair with Monica Lewinsky, Al-Qaeda warmed up for 9-11 by bombing the US embassies in Nairobi and Dar-es-Salaam and France won the World Cup with a multi-racial team in Paris. Number one singles included ‘Never Ever’ by All Saints, ‘My Heart Will Go On’ by Celine Dion, and ‘Millennium’ by Robbie Williams.

The first case of note is Clark v Novacold in the Employment Appeal Tribunal, the decision that was subsequently overturned by the Court of Appeal. However, while it interpreted the statute in the same way as the House of Lords subsequently did in Malcolm, it also suggested that there are some situations in which a comparator is not required, especially where the disability itself, rather than merely a reason related to it, is the reason for the less favourable treatment. Precisely this approach appears to have been taken in another 1998 case, British Sugar v Kirker, in which it was held to be unnecessary to compare the treatment of a blind employee with that of other people in the redundancy selection pool.

The comparator point may prove to be a moot one if Malcolm is reversed, as expected, by the Equality Bill. On the other hand, the requirement in Malcolm for knowledge of the disability, before disability-related discrimination can be established, is likely to be preserved and, if so, two further cases from 1998 might prove to be of great significance. Employers often argue that, in order to be on notice, they must be informed of the exact clinical diagnosis, often with medical evidence but, according to O’Neill v Symm, this is incorrect. What is required is knowledge of “the material features of (the disability) as set out in Schedule 1 of the Act” or, in other words, the symptoms which make the person disabled, such as impaired mobility or impaired speech, rather than the medical label itself. Support for this view is provided by the case of Ridout v T C Group, in which knowledge of the photosensitive epilepsy of an interview candidate was held to be insufficient to put the potential employer on notice of its symptoms.

The fascinating case of Hartlepool Borough Council v Llewellyn concerns an issue which surprisingly has not been resolved in nearly forty years since the Equal Pay Act was passed, which is whether men who carry out the same work as women who are successful in equal pay claims can bring their own claims under the Act, using the successful women as comparators. Logic suggests that they can and the appeal against such a finding was indeed rejected by Justice Underhill. Dramatically, however, he also allowed a cross-appeal by the male applicants, with the effect that their claims could be backdated to the same date as the successful claims by their female colleagues. There was said to be no basis for suggesting that the backdating of pay was a legal fiction so could not be used for comparison purposes.

There was also an interesting discussion about a potential can of worms which could be opened. John Bowers QC and Christopher Jeans QC for the councils submitted that the analysis of the tribunal would allow men to bring claims even in situations where their female colleagues did not and Robin Allen QC, for the claimants, agreed but said that this was an acceptable state of affairs. Justice Underhill was not persuaded on the grounds that equal pay claims must be brought on the basis of a concrete rather than a potential comparison. These remarks were obiter and we will have to wait for another day for a final determination. In the meantime, leave has been granted to appeal to the Court of Appeal and it seems inevitable that they will look at this again. However, on the whole, the judgment seems impeccable.

I was very pleased to read this story on the BBC News website, which confirms that Cheltenham Borough Council has lost its ludicrously expensive and potentially vexatious claim against its former managing director, Christine Laird. In fighting the case, the council has spent an amount close to the £1 million it was claiming and was ordered to pay a similar amount to her in costs. The reality is that it had little prospect of success and failed on its facts. The council said she was liable for misrepresentation because she had failed to declare a bout of depression on the health screening part of her application form but the questions that she was asked were too vague to make it clear that this was even relevant.

However, there is a wider point of principle here which was not necessary to decide this particular case but which is likely to arise in the future. In order to show misrepresentation, it must be established that the fact which is hidden is material such that the contracting party would not have entered into the agreement if it had been aware of it. Therefore, the council would have to have shown, in effect, that it would have discriminated against Ms. Laird on the grounds of her past disability. It seems to me that, as a matter of public policy, a fact cannot be said to be material if it would be unlawful to take it into account in deciding whether to form a contract, so the council would have lost whatever it had asked.

This case also highlights the whole problem of health-screening questionnaires in the first place. They are banned in most large EU countries and in the United States of America, making the UK a third world country in its tackling of this issue. The charity Rethink has issued a press release which argues for an amendment to the Equality Bill and their campaign is supported by others in that sector. I wish it well.

This article in the Daily Telegraph concerns a Barclays Bank employee who was paid £19,000 a year for three years when she should have received a salary of £9,500. An Employment Tribunal in Ashford ruled, firstly, that she does not have to return the overpayment and, secondly, that she should continue to be paid the higher amount. It is unfortunate that the news reports do not explain the reasoning of the tribunal because I am unable to see a way in which it could properly have reached this conclusion.

The starting point must surely be the law of restitution, which was applied to an employment contract in the case of Commerzbank v Price-Jones. This judgment of the Court of Appeal endorsed the principle that a person does not have to make restitution for an overpayment if she has changed her position to her detriment to the extent that it would not be equitable for her to have to repay the money. However, the principle was confirmed to be rather a narrow one and Mr. Price-Jones actually failed in his claim.

That was a claim brought in the civil courts and applying the principles of restitution in an Employment Tribunal is not straightforward. This is because most financial claims are brought as unlawful deductions of wages under the Employment Rights Act 1996, for which an overpayment by the employer provides an absolute defence under section 14(1). It is possible to bring breach of contract claims in the tribunal up to a maximum value of £25,000 but only where the employment has been terminated. Natasha Keenan remains employed by Barclays so she would not have been able to bring her claim in this way.

However, the really surprising part of the decision is the conclusion that the claimant should continue to receive what she had mistakenly been paid, with the effect that her contract of employment is varied without the agreement of her employer. This is not a situation to which the doctrine of mistake could be said to apply because the error was made after the contract was formed rather than before and so the employer cannot be treated as being bound by it. Nor is there any basis for this finding within the law of restitution, even if it were relevant. Barclays are a large employer and I would expect them to appeal.

Medical evidence is often required by Employment Tribunals, from short letters by GPs to explain why a person failed to turn up to a hearing, to detailed expert reports in order to establish whether a person qualifies for protection under the Disability Discrimination Act. There is case law which indicates that tribunals should not substitute their view for that of medical witnesses and most of us are used to such documents being accepted uncritically so it can initally be disconcerting when tribunals appear to take an entirely different approach and reject the medical evidence that has been placed in front of them.

To understand why, the important thing to realise is that the function of courts and tribunals is rather different from that of doctors. For general practitioners in particular, there is almost an assumption that they will provide a sick note if asked by one of their patients and they are rarely in a position to make a detailed assessment of the merits of the request. Having said that, they are sometimes sceptical and evidence of their scepticism is often visible in their choice of language. Tribunals are very astute to spot this and the most common reason why they may decide to reject a doctor’s note is because it states, for example, that, “Mr. Smith came to me this morning and told me that he was under a lot of stress.”

However, there are times where doctors would have no qualms at all about providing a diagnosis but tribunals still take a different view. This seems illegitimate but the problem is that, while they cannot substitute their opinions for medical expertise, there are occasions, even in the case of expert reports, where the results of the examination are not determinative and doctors have to fall back on the credibility of the patient in order to make their diagnosis. Of course, medics do not have a monopoly in the assessment of credibility and it could reasonably be said that tribunals are rather more qualified for this purpose. With the obvious exception of House, doctors generally do not give much weight to the possibility of a patient lying. In these cases, there is no reason for an expert’s opinion to be binding.

Nevertheless, I want to end this post with an observation. There seems to be a great deal of mutual suspicion between the legal and scientific communities, with the latter believing that the former are ignorant of their world. This can be intensified by a perception that courts and tribunals come to bizarre conclusions which fly in the face of scientific evidence and and that they disregard expert evidence for unsound reasons. It is hoped that the above analysis can help to explain why this happens in at least some cases and so help to bridge the divide between the two cultures. On the other hand, I would like to see tribunals rely much more explicitly on this particular piece of dark law and to treat medical experts with an appropriate level of respect in making their judgments, even where there are some good reasons to disagree with their conclusions. To do otherwise brings both professions into disrepute.

The case of Knight v Treherne Care & Consultancy is primarily about unfair dismissal but there is also a point about the Employment Appeal Tribunal Practice Direction and the procedure within it for agreeing a record of the hearing below. In civil law, an appellant is entitled to receive a transcript produced by the court and, although it has to pay the adminstrative costs of producing it, these will be recoverable from the opponent if the appeal is successful. The EAT used to have a similar practice, funded by the taxpayer, but excessive cost and abuse of the system to run ’fishing’ appeals made reform necessary.

The problem is that the EAT had to devise a system from scratch, which allows it to examine, where necessary, what happened below while also providing access to justice by keeping litigation costs down. It did so by encouraging parties to agree notes of evidence with the proviso that, if they fail to do so, the Registrar will decide which notes will be used at the hearing or will ask the tribunal to produce its own notes if necessary. There are also potential costs sanctions for parties who fail to reasonably co-operate in agreeing a note. This is all well and good but often, as in this case, the first of the three options is the preferred one with the consequence that one party’s note will be chosen over the other.

The reasons of Judge McMullen do not make it clear why the notes of the Claimant were preferred. The Respondent is chastised for failing to object to a ruling on the matter but this does not make it correct. My fear is that the Claimant, represented by Counsel, was able to produce a fuller note and so this was accepted and I have grounds for thinking that this might be the case as I have had encountered this reasoning from the Registrar in one of my own cases. The consequence is that there is an incentive for parties with more resources to hold the other side to ransom, knowing that their note will be accepted and their opponent will be unable to object, however clear their recollection of events. Perhaps it could be argued that which note is used is unlikely to make much difference in the vast majority of cases but, if so, a fairer solution would be to say that notes of evidence are not necessary at all. I believe that the current approach has the potential to create systematic unfairness and is a car crash waiting to happen.

Therefore, reality television contestants are employees, according to the French Supreme Court.

This Friday, I report on an intellectually worthy and interesting decision about tribunal procedure and on a story about adulterous flirtation on a tropical island. In McBride v Standards Board for England, it was held that an Employment Judge sitting alone at a case management discussion can rule that certain witnesses should be prevented from appearing at the full hearing on the grounds that their evidence is irrelevant. Not surprisingly, Judge Peter Clark found that Article 6 of the European Convention of Human Rights, which gives the right to a fair trial, does not include a right to call inadmissible evidence. He noted that, if the witnesses become relevant at a later stage, following disclosure of documents and witness statements from the other side, the order can be varied due to the change of circumstances.

The decision of the Court of Session in King v Eaton is reported in the Industrial Relations Law Reports at [1996] IRLR 199, and is one of those cases that appears to say a lot more than is in the headnote. According to the IRLR, the tribunal at first instance was entitled to find the dismissals unfair for lack of consultation. However, in fact, the tribunal said something more interesting which is worth exploring.

The original finding was that the tribunal did not have enough evidence with which to decide upon the fairness of the dismissal because, firstly, there had been no consultation which would have provided documentary evidence, and, secondly, because the witness who appeared before it was not able to explain how the scores had been reached. This suggests that the purpose of a consultation is not only to ensure a fair process for the employee but also to create a paper trail which allows the fairness of a dismissal to be assessed. It is inappropriate for a tribunal to reassess the scores in detail but I submit, further to my previous dark law post, that it is entitled to look at the process for evidence of bad faith.

There are good reasons for this. If botched procedures are to be forgiven, it would be far too easy for employers to cover up an unfair dismissal by dispensing with formalities, making it difficult for tribunals to come to the correct conclusion. One way in which they will try to do this is to consider the size of the employer. For a small employer to fail to follow procedure is frequently a sign of ignorance rather than anything sinister and is much more easily discounted than a lapse by a large employer. Ironically, HR managers who appear as witnesses are often keen to emphasise their qualifications and experience but, if a consultation has clearly been mismanaged, they would increase their chances of success by giving evidence of their disorganisation and incompetence. Otherwise, the process looks suspicious.

A final twist is the hint from the tribunal that, had the witness been able to explain the scoring, the lack of consultation would have been of less import. This suggests that, at least as far as improper motives are concerned, evidence produced after the decision to dismiss has been made is admissible. This is not as heretical as it first seems. Indeed, the very reason why employers cannot rely on evidence of an employee’s guilt that was not available at the time is that, in doing so, they are showing that they did not have enough evidence when they took the decision so it was tainted by bad faith. The question is how far this extends to questions such as credibility for which, according to Linfood Cash & Carry v Thomson, a tribunal must not substitute its own view based on what happens before it. However, if an employer says that it had a genuine motive for dismissing an employee because he appeared evasive and inconsistent at the disciplinary hearing, this is supported if he performs equally poorly under oath.