Disability discrimination, provision of expert medical advice

Disability discrimination - the provision of expert medical advice 
(case ref: 5.4/ May 2005)

Summary of case

Our member Mr X had been employed in the Civil Service for 12 years up to 2002. He left employment then having suffered a nervous breakdown. In March 2004 he was offered employment as an Administrative Assistant in a large Government Department. T

his was a temporary appointment. He completed a health declaration form in which he confirmed he left the Civil Service in 2002 due to anxiety. He also stated he did not have a disability at the time he signed the form. 

He then received a letter saying his employment was terminated because he had previously been dismissed for "disciplinary reasons". He subsequently received another letter saying the decision was based purely on the fact that an "adverse reference had been received". 

A review of other case papers available suggested there was further conflicts in relation to management's record of the reasons why his employment in 2002 was terminated.

Advice requested

The PCS Bargaining Unit asked for general advice on merits, prospects etc of pursuing a claim.

Key advice provided by Thompsons

The most important parts of the advice provided by Thompsons are covered in the following extracts from the solicitor's letter: 

"The protection under the Disability Discrimination Act extends to people who have had a disability in the past. In order to be covered, the person must have a physical or mental impairment which had a substantial adverse effect on his or her ability to carry out normal day to day activities which lasted for at least twelve months. On the information available to me, it seems that there are reasonable prospects of your member being able to satisfy the Tribunal that he has a "past disability". He was absent from work from July 2000 until he was dismissed in March 2002. The employer's Occupational Health Report stated that he was considered to be disabled within the meaning of the Disability Discrimination Act in May 2001. 

An employer must not, for a reason which relates to a past disability, unjustifiably treat that person less favourably than he treats or would treat others, to whom the reason does not apply. In dismissing your member for a reason related to his past disability, it is arguable that the Department is treating him less favourably. 

The Department has a defence if it can show that the treatment was justified in the circumstances. The Department would have to show that the reason for the less favourable treatment was both material to the circumstances of the particular case and substantial.

It seems to me that an analogy can be drawn with cases where the employer is considering whether to dismiss on the grounds of long term sickness absence. Case law suggests that such dismissals are not justified unless the employer seeks appropriate medical advice and possibly specialist medical advice. In fact, an e-mail dated 11th March 2004, does refer to the need to carry out a SEMA referral as soon as possible. However, a decision then appears to have been taken, on 15th March 2004, to simply terminate your member's employment. 

My view is that the Department is likely to find it difficult to justify this decision. There is a strong argument that the Department should, at the least, have obtained medical advice as to your member's fitness to work, before deciding to dismiss him. 

For these reasons, on the information available to me, I am of the view that the case has reasonable prospects of success. As usual, this advice is subject to review at each stage of the case."

Legal Department comment

Two points in relation to the advice provided by Thompsons are worth noting. Firstly, there is the general point that the DDA can also extend and cover "post disability". Secondly, there's the further emphasis on the need for employers to obtain medical evidence in order to justify dismissal decisions. The case highlighted under the reference Y&H/044/04 is also relevant to this point. 

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