Employment Appeal Tribunal, 1999. Full decision: bailii.org.
An employee was dismissed after a long period of being sick off work. Only after the dismissal did it become entirely clear that he had ME or Chronic Fatigue Syndrome. The Employment Tribunal held he had been unlawfully discriminated against. The EAT dismissed the employer’s appeal against this decision. In doing so it considered various important issues.
In Baynton v Saurus (on bailii.org) the EAT had said that the Tribunal had to carry out a balancing exercise in applying the test of justification, between the interests of the employer and the disabled employee. The EAT in the present case agreed that one should take into account the circumstances of both the employer and the employee. However, the EAT in the present case was more doubtful on the balancing exercise. Whilst not precluding some balancing exercise, all that was material was whether the reason for the treatment was “both material to the circumstances of the particular case and substantial”, as interpreted in the 1996 Code of Practice to the effect that the reason has to relate to the individual circumstances in question and must not just be minor or trivial. (The EAT was not enthusiastic about the lowness of the threshold, but any remedy for this lay with Parliament rather than the courts.) However, the Employment Tribunal’s approach in the present case had been satisfactory.
Further, in O’Neill the EAT had considered that an employer could only discriminate for a reason related to a disability if he had knowledge of the disability, or at least of the material features of it as set out in Sched. 1. The EAT in the present case doubted whether this was correct. In this case, though, the Employment Tribunal had in any event found that the employer’s doctor knew that the applicant was suffering from symptoms falling within Sched. 1.