Irwin Mitchell | Focus on Employment | Summer 2016 - Case Law Update

Is attention deficit hyperactivity disorder a disability?

Not on the facts according to the Scottish Court of Session in JC v Gordonstoun Schools Ltd


A 16 year old female boarding school pupil with attention deficit hyperactivity disorder (“ADHD”) was found having sex with a male pupil. The school principal decided to exclude both of them.

The mother of the child with ADHD claimed that her child had a disability and that the school’s decision to exclude her amounted to unlawful discrimination. The Additional Support Needs Tribunal for Scotland originally heard the case and it rejected the claim because it did not consider that the female pupil was in fact disabled for the purposes of UK equality legislation. The mother appealed.


The Scottish Court of Session rejected the appeal. It found that the original tribunal had been entitled to decide that ADHD did not meet the tests required i.e. it did not have a substantial and long term effect on her ability to carry out normal day to day activities. They also found that there was not a causal link between the female pupil’s condition and the fact that she had sex with another pupil. There was evidence in this particular case that the pupils’ had planned to have sex and it was not an impulsive act.


This decision does not however mean ADHD is not, or cannot be classified as a disability. The symptoms of ADHD include inattentiveness, hyperactivity and impulsiveness and people with this condition may also have additional problems, such as sleep and anxiety disorders. It is likely that these symptoms (if sufficiently serious) are capable of amounting to a disability as the threshold is not that high (and, in fact, it is quite unusual to see cases being litigated on the basis of whether a particular condition is a disability). In most cases it is safer to assume that ADHD is a disability and will be protected under UK Equality legislation. Each case should therefore be treated on its merits, including considering whether or not as an employer, reasonable adjustments need to be made in the context of individuals with potential disabilities.

In the context of an employment relationship, there must be a link between the condition and the detriment complained of and it will not be automatically assumed that the individual’s disability featured in the decision making process.

Does the ACAS Code of Practice on Discipline and Grievances apply to ill health dismissals?

No, according to the EAT in Holmes v Qinetiq.


Mr Holmes was a security guard who had been dismissed for no longer being able to do his job because of poor health. The employer conceded that Mr Qinetiq’s dismissal was unfair (on the basis that it had failed to obtain an up to date occupational health report), and the case proceeded to a hearing to determine compensation. Mr Qinetiq unsuccessfully sought an uplift of up to 25% because his employer had unreasonably failed to follow the ACAS Code of Practice on Disciplinary and Grievance. The Tribunal held, however, that the Code did not apply to ill health dismissals.


The EAT agreed this wasn’t a disciplinary case. Mr Holmes wasn’t to blame for his inability to do his job. Culpable conduct is key to the Code applying and, therefore, to the possibility of increased compensation.


Things might not always be this clear-cut. What begins as genuine ill health could become misconduct (which particularly is an issue in instances of short term rather than long term ill health) or culpable poor performance, or vice versa. The real risk here for employers is in not keeping a close eye on the issues as they develop. This case does however provide some helpful clarification for employers that in genuine ill health cases where there is no disciplinary or culpable conduct element (i.e. something that calls for correction or punishment), the Code won’t apply – although a fair dismissal in those circumstances is obviously preferable to arguing simply over compensation and whether uplifts are available which is what this case was about.

Does the ACAS Code of Practice on Discipline and Grievances apply to Some Other Substantial Reason (SOSR) dismissals involving a break down in the working relationship?

No, according to the EAT in Phoenix House Ltd v Stockman and another.


Following a reorganisation, Ms Stockman was appointed to a more junior role. She complained that she had been treated unfairly and after raising a formal grievance, she confronted her manager when he was engaged in another meeting. This was treated as misconduct and she was given a 12 month written warning. Ms Stockman unsuccessfully appealed against the written warning.

The business was concerned that the relationship between Ms Stockman and her manager had irretrievably broken down and terminated her employment arguing it was entitled to do so for some other substantial reason, namely the irretrievable breakdown in the relationship. This was found to be both procedurally and substantively unfair and was also found to be in breach of the ACAS Code of Practice. The business appealed.


The EAT upheld the finding of unfair dismissal, but found that the ACAS Code does not apply to SOSR dismissals. The Claimant could not therefore benefit from an uplift in compensation.


This decision applies to all SOSR dismissals, not simply those based on the breakdown in relationships at work. However, with regard to SOSR dismissals based on the breakdown of working relationships, the EAT said that employers must fairly consider whether the relationship had deteriorated to such an extent that the employee cannot be reincorporated into the workforce without unacceptable disruption. In this case the employer had closed its mind to that and had, in effect, put the onus on the employee to prove that she could continue to work harmoniously with her manager.

If you are contemplating dismissing a member of staff for a similar reason, you should consider other options to minimise contact between the two individuals and perhaps set a short trial period to see if these work out before deciding to dismiss. Even though the ACAS Code does not apply, you must still act fairly before dismissing which will at least require holding a meeting and allowing the employee to make representations before you make any decision to terminate their employment on this basis.

Can an employee be prosecuted for taking confidential information from their employer before moving to a new job?

Yes. The Information Commissioner has recently successfully prosecuted a former employee for unlawfully obtaining personal data in a case heard against Mark Lloyd at Telford Magistrates Court.


Mr Lloyd worked at a waste management company in Shropshire and emailed the details of 957 clients to his personal email address as he was leaving to start a new role at a rival company. The documents contained personal information including the contact details of customers, as well as purchase history and commercially sensitive information that would have been useful to him in his new business venture.

His employer complained to the Information Commissioner who brought criminal proceedings against him for breaching the Data Protection Act 1998.


Mr Lloyd pleaded guilty to the offence and was fined £300 and ordered to pay a surcharge and costs.


Reporting an employee who has unlawfully taken personal data to the Data Commissioner is a useful weapon in an employer’s armoury, particularly if you do not have any contractual restrictions in their contract of employment that you can enforce

Many employees simply forget that stealing personal information is a crime and they will receive a criminal record if they are convicted and a fine of up to £5,000. Even if you do have appropriate contractual restrictions, or are seeking to rely upon an implied term to keep information confidential, threatening to report an employee to the Data Commissioner for taking confidential personal information and obtaining an undertaking from him/her that they have not retained any copies may, in appropriate cases, be quicker and cheaper than seeking injunctive relief.

The Data Commissioner has made a number of successful prosecutions against former employees and this case demonstrates that it does not simply enforce breaches that affect larger businesses.

Can a court order an ex-employee to destroy confidential information belonging to their former employer to prevent misuse?

Yes, according to the High Court in Arthur J. Gallagher Services (UK) Limited and others v Skriptchencko and others.


The employer in this case provided insurance brokerage services. It suspected that a former employee had taken confidential information for the benefit of his new employer and after it brought a claim against him and his new employer (for inducement of a breach), he admitted to taking a client list. His new employer admitted using it to contact 300 clients.

The old employer sought interim relief in the form of an injunction and, as part of that process, Mr Skriptchencko was ordered to deliver up his electronic devices for inspection by a forensic IT expert. The expert found that Mr Skriptechencko and his new employers were misusing his former employer’s confidential information. The employer asked the court for an order that any confidential information belonging to it should be deleted.


The High Court granted the order on the basis that the defendants had admitted taking and misusing the information, had sought to cover this up and could not be trusted to delete the material themselves. It decided that the old employer would be able to establish a claim of breach of confidence if the case proceeded to trial and this approach would involve the least risk of injustice if it turned out to be wrong so ordered its deletion at the injunction stage.


Businesses sometimes mistakenly believe that including post termination restrictions is a waste of time as they are rarely enforced. This case demonstrates that well drafted restrictions are capable of enforcement. Businesses must however be able to demonstrate that they have a legitimate interest that is appropriate to protect and the protection sought is reasonable. This will be judged at the date the restrictions were entered into and not the date the employer seeks to enforce them. Businesses often go wrong by not regularly reviewing the contractual terms of key members of staff, or by reproducing standard restrictions that have travelled from one contract to another.

Summer 2016

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