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Issue 105 (November 2005)
In the news
Constructive architect
Repent at leisure
Fixing the terms four years on
Sickening for justice
Exposed to discrimination
Consult in time
The stress of it all
Under the Disability Discrimination Act (DDA), there are a number of excluded conditions such as a tendency to physical or sexual abuse of other people, exhibitionism or a tendency to set fires.
In Edmund Nuttall Ltd v Butterfield (2005, IRLR 751), the employment appeal tribunal (EAT) has said that, if the reason for the less favourable treatment is because of an excluded condition, then the fact that the person has a disability under the Act (even if it is linked to the excluded condition), is irrelevant.
In November 2003, following a business trip, Mr Nuttall committed two offences of indecent exposure and one offence of dangerous driving.
He was sentenced in February 2004 to a three-year Community Rehabilitation Order (CRO) and was ordered to see a psychiatrist. He was also disqualified from driving for two years.
After sentencing, Mr Butterfield told his employer about the driving disqualification, but did not mention the indecent exposure nor the CRO. His employer agreed he could return to work as long as someone else drove him about.
However, Mr Butterfield was subsequently dismissed when his employer found out about the other offences, saying they had lost all trust in him. He then made a claim of unfair dismissal and disability discrimination, based on his psychiatrist's assessment that he was suffering from a severe depressive illness.
The tribunal said that Mr Butterfield committed the offences because he was suffering from depression. As the offences were the reason for his dismissal, the tribunal found that he was less favourably treated for a reason relating to his disability.
The tribunal also upheld his claim of unfair dismissal, on the basis that his employer had prejudged the matter before the disciplinary hearing took place. And as his employer had not thought about whether he was likely to re-offend, dismissal was outside the range of reasonable responses open to them.
Regulation four of the DDA specifies that "a tendency to...sexual abuse of other persons" and "exhibitionism" are among the "conditions" that are "not to be treated as amounting to impairments" under the Act.
Referring to the decision in Murray v Newham Citizens' Advice Bureau, the EAT said that it was not helpful to refer to the exclusions as "free-standing conditions", as opposed to conditions that are the direct consequence of some physical or mental impairment. It pointed out that a claimant may have both a legitimate impairment and an excluded condition.
The critical question: what was the reason for the less favourable treatment? If it was the legitimate impairment, then that would amount to discrimination. If it was the excluded condition, then the claim would fail.
In this case, the EAT agreed that Mr Butterfield was disabled within the meaning of the DDA. His employer knew about his mental state, not least because he had been hospitalised on 22 November 2003 and had not come back to work.
Nevertheless, they had agreed, at the meeting in February 2004, that Mr Butterfield could continue to work for them. They only changed their minds when they heard about the indecent exposure, and were concerned that his behaviour could bring the company into disrepute.
The EAT found, therefore, that the sole reason for dismissal related to the exposure, an excluded condition under the DDA, and not to the legitimate impairment which was depression. Mr Butterfield's claim of disability discrimination could not succeed.
However, it upheld the decision of unfair dismissal, on the basis that Mr Butterfield's employer prejudged the outcome of the internal disciplinary proceedings and failed to think about whether he was likely to re-offend.
And it also overturned the tribunal's finding that Mr Butterfield did not contribute to his dismissal by his own conduct, as there was plenty of evidence that the offences were pre-planned.