Employment Law Advocates

The case of Bowers v William Hill is interesting, not because it is likely to be reported but because the situation is unusual. The respondent made a concession that the claimant was disabled but the tribunal nevertheless found that her case failed, seemingly on the basis that the Respondent could not have known that her condition was going to last for twelve months at the time that it carried out the alleged discrimination. This bizarre conclusion appears to be an extrapolation of the subjective element of the test for disability which was introduced by the Court of Appeal in Richmond Adult College v McDougall. (At least, that would be my interpretation of McDougall. If you are going to say that disability depends upon whether an employer can predict what is likely to happen, a subjective element is introduced.)

The Employment Appeal Tribunal tried to understand the decision in two ways, firstly by asking whether the real issue was whether the respondent had knowledge of the disability, but this was unsustainable because the tribunal had found that it had. Judge McMullen confirmed what the Law Lords had indicated in Malcolm that knowledge that a particular condition amounts to a disability is not required. Secondly, it was suggested that the concession might relate only to the time at which the report of the joint expert was produced. However, a legal concession can only relate to something which is at issue in the case and the only dates which were relevant for these purposes were the dates of the acts about which the complaints had been made. In any event, the tribunal had also made clear findings about the scope of the concession. No application was made to withdraw the concession so the decision could not stand.