Previous Article Next Article Medical treatment affects appealOn 1 Mar 2001 in Personnel Today Comments are closed. A telephone operator’s disability claim goes back to appeal,but his ongoing medical treatment must then be taken into account. Plus caseson race discrimination, disciplinary proceedings and the ‘unreasonable’ actionsof a tribunal chairman in striking out a sex discrimination claimWhat is a disability? Abadeh v British Telecommunications IDS Brief 675, EAT Abadeh, a telephone operator, suffered permanent hearing loss and tinnitusin his ear after receiving a sudden, high-pitched noise through his headset. Healso developed post-traumatic stress disorder. Abadeh brought a disabilitydiscrimination claim and the tribunal had to establish if Abadeh was”disabled” within the meaning of the Disability Discrimination Act. The tribunal considered four medical reports, two for each of the parties.BT’s reports were prepared by M. The tribunal held that although Abadeh had animpairment that adversely affected his ability to carry out normal day-to-dayactivities, the effects of the impairment were not substantial. Accordingly,Abadeh was not disabled. Abadeh appealed. The EAT found that the tribunal had been over-influenced byM’s opinion and the matter was remitted to a fresh tribunal. Interestingly, theEAT also held that the effects of medical treatment (Abadeh’s ongoingpsychotherapy), should be taken into account if the medical evidence showedthat continuing treatment brought a permanent improvement. Awareness of investigation necessary London Borough of Ealing v Garry IRLB 656, EAT Garry, a Nigerian, was the council’s housing benefits manager. Afterlearning she had been investigated by her previous employer for suspectedhousing benefit fraud and soon after dismissing another Nigerian employee for asimilar reason, the council appointed Singh, a “special” investigatorto look into the case concerning Garry. In March 1997, Singh concluded Garry had been involved in a fraudulent claimbut Garry only learned she had been under investigation in May. The next monthshe met the auditors and in August the council concluded there was insufficientevidence to start disciplinary proceedings. It omitted to tell Garry or Singhof this and he continued with his investigations, albeit limited to a fewfurther phone calls. Only in July 1998 was Garry told no further action wouldbe taken. She brought a successful race discrimination claim. The tribunal held thatstereotypical assumptions had been made about Garry being a Nigerian and thiswas why a “special” rather than ordinary investigator had beenappointed. Further, Garry had been subjected to a detriment by the ongoinginvestigation even though she had been unaware of it. The council successfullyappealed. Although the tribunal had been entitled to infer the reason forSingh’s appointment was Garry’s race, she had not suffered any detrimentbecause her lack of awareness of the ongoing investigation had not caused herany actual disadvantage. Care needed in disciplinary proceedings R v Chief Constable of Merseyside Police ex-parte Bennion IDS Brief 678, High Court Bennion, a chief inspector, made a formal complaint about her systematicharassment by another officer. After the investigation of her complaint, thechief constable upheld the decision to transfer Bennion to another area. Shebrought a sex discrimination claim, but before this was heard, was interviewed,cautioned and tape-recorded about a possible disciplinary matter. She added a victimisation claim to the tribunal proceedings, which werestayed, pending the outcome of the disciplinary matter. The area’s new chiefconstable refused Bennion’s request that the disciplinary hearing, which he wasto conduct, should be transferred to another force. Following the disciplinaryhearing, Bennion was demoted to Inspector. On her successful application for a judicial review, the High Court quashedthe disciplinary decision. The chief constable should not have conductedBennion’s disciplinary hearing because the outcome could have a bearing on thetribunal claim. No one could be a judge in their “own cause” wherethere was a real possibility of partiality. Clearly this is a lesson to allthose conducting disciplinary proceedings. Tribunal chairman acted unreasonably Unwin v Governors of Sackville School and another Unreported, February 2001, EAT Unwin began proceedings for victimisation contrary to the Sex DiscriminationAct 1975. There was a massive amount of paperwork and the chairman adjournedthe hearing so that he and the tribunal members could read the papersthemselves. The chairman listed the matter for a directions hearing, which heconducted alone. At that hearing, he struck out Unwin’s claim and ordered herto pay the school’s costs. Unwin successfully appealed to the EAT. It held that while the provisions ofthe employment tribunals Act 1996 did enable a chairman to strike out a claimbefore a final determination of the case on its merits and to determine costs,the chairman had erred by not consulting the lay members and seeking theirviews. The chairman and lay members had spent four days discussing Unwin’s casebefore the adjournment and the chairman had not exercised his power in a”judicial” manner. Related posts:No related photos.