Is attention deficit hyperactivity disorder
a disability?
Not on the facts according to the Scottish
Court of Session in JC v Gordonstoun Schools
Ltd
Facts
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.
Decision
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.
Comment
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.
Facts
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.
Decision
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.
Comment
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.
Facts
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.
Decision
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.
Comment
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.
Facts
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.
Decision
Mr Lloyd pleaded guilty to the offence
and was fined £300 and ordered to pay a
surcharge and costs.
Comment
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.
Facts
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.
Decision
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.
Comment
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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