Rowden v Dutton Gregory (A Firm)
| Jurisdiction | UK Non-devolved |
| Date | 2002 |
| Court | Employment Appeal Tribunal |
Discrimination - Disability - Employment - Less favourable treatment - Employee suffering from depressive illness - Dismissed for misconduct following disciplinary proceedings held in absence on sick leave - Tribunal finding failure to make reasonable adjustments in relation to disciplinary proceedings - Whether also less favourable treatment - Tribunal finding employers' reasons for dismissal unjustified but unrelated to disability - Whether inference of discrimination to be drawn -
The applicant, who suffered from depression, was dismissed for misconduct following disciplinary proceedings held in her absence while she was on sick leave. On her complaints of unfair dismissal and unlawful discrimination contrary to section 5(1) and (2) of the Disability Discrimination Act 1995F1, the employers conceded that the applicant was disabled within the meaning of the Act and made no submission that the dismissal was substantially or procedurally fair, so that the employment tribunal found that the dismissal was unfair. The tribunal held that by implementing disciplinary proceedings in the applicant's absence the employers failed in their duty to make reasonable adjustments to accommodate her illness under section 6(1) and were in breach of section 5(2). The tribunal further found, however, that, although there was little justification for the assertions in the dismissal letter giving the reasons for dismissal, those reasons did not relate to the applicant's disability so as to amount to discrimination within the meaning of section 5(1), and they dismissed that part of her claim.
On an appeal by the applicant—
Held, allowing the appeal, that the words “for a reason which relates to the … disability” in section 5(1) of the Disability Discrimination Act 1995 were wider and more inclusive than the causative links in the sex discrimination and race relations legislation; that, having found that the disciplinary process was held in breach of section 6 on the assumption that the applicant's absence through illness made the process inadequate, the tribunal erred in law in not finding that that was also less favourable treatment relating to the disability or at least in not explaining how such detriment came to be regarded as unrelated to her disability; that, just as in race discrimination cases, the outcome in disability discrimination cases would often depend on the propriety of drawing inferences from primary facts, and a corresponding approach should be taken to the questions of whether there was less favourable treatment within section 5(1) and the reason for it; that, accordingly, the employers having given an unsatisfactory explanation for the dismissal, it was open to the tribunal to infer disability discrimination and they erred in failing to recognise that possibility; and that the case would be remitted to the tribunal to reconsider the question whether the employers had discriminated against the applicant under section 5(1) (post, paras 5, 8, 9, 11, 12).
The following cases are referred to in the judgment:
Clark v Novacold Ltd [
Khanna v Ministry of Defence [
King v Great Britain-China Centre [
Nagarajan v London Regional Transport [
No additional cases were cited in argument.
APPEAL from an employment tribunal sitting at Southampton
By an originating application dated 11 August 1999 the applicant, Mrs Penelope Anne Rowden, made complaints of, inter alia, unfair dismissal and disability discrimination against the employers, Dutton Gregory, Solicitors. By a decision promulgated on 26 July 2000 the tribunal upheld her complaint of unfair dismissal and her complaint under section 5(2) of the Disability Discrimination Act 1995 but dismissed her complaint of less favourable treatment under section 5(1).
The applicant appealed on the ground, inter alia, that the tribunal erred in law in concluding that there was no discrimination under section 5(1).
The facts are stated in the judgment.
Peter Doughty for the applicant.
Michael Dineen for the employers.
25 February 2002. The following judgment of the appeal tribunal was handed down.
LINDSAY J
1 Mrs Rowden, the applicant, appeals against a decision of the employment tribunal at Southampton. The appeal is chiefly concerned with section 5(1) of the Disability Discrimination Act 1995.
2 The applicant who appeared before us, as she did below, by Mr Doughty, was employed as a secretary from September 1993 to 21 May 1999 by the employers, Dutton Gregory, Solicitors, for whom Mr Dineen appeared before us; he had appeared for them also below. She was dismissed by the employers on 21 May 1999. On 12 August 1999 she presented an originating application for “unfair dismissal, wrongful dismissal, unlawful discrimination contrary to Disability Discrimination Act 1995, unlawful deduction of wages”. In the accompanying “statement of complaint” she complained of the employers' failure to implement their disciplinary procedure or to have properly investigated matters and she claimed that her depression amounted to a disability within the 1995 Act. Her originating application concluded:
“The applicant contends that she was discriminated against on the grounds of that disability in that she was dismissed and the [employers] failed to discharge [their] duty to make reasonable adjustments to her workplace.”
3 On 6 September 1999 the employers by their notice of appearance asserted she had been dismissed for misconduct or “some other substantial reason”. She had gone off sick on 30 April 1999. The employers' partners looked at her case on 20 May 1999. They said they had found four headings of complaint against her; they had taken the view: “Her cumulative behaviour was such that it could amount to nothing less than gross misconduct.” They could have made no further adjustments to accommodate her, claimed the employers, and in any event she did not have a disability within the Act. Apart from a general traverse the...
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