Employment Law Advocates

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.