Crystal Ball

Blogger Head of Legal, who like me must be sad enough to browse case reports that fall outside his area of expertise, comments on the odd result in Richmond Adult Community College v McDougall [2008] EWCA Civ 4. The actual point of construction in this case is reasonable – it confirms that in deciding whether or not someone can make a discrimination claim on the grounds of their disability, the tribunal can only look at the information available to their employer at the time he chose to dismiss. This mirrors Unfair Dismissal caselaw – looking at the decision in the light of subsequent events isn’t permissible. IMHO this is the only way to meet the purpose of the law in requiring employers to make reasonable decisions. Asking them to gaze into a crystal ball doesn’t help anyone.

The actual result of the case is more disturbing. A lady, who had initially been offered employment, was then turned down because her history of psychiatric illness was discovered. Fair enough, you might think, but her illness was three years behind her, and her psychiatrist had commented that she was “fully able to return to work and [there were] no concerns about her mental health relating to this”. 

She brought a claim under the Disability Discrimination Act. This may seem logical – disability was the main reason for her dismissal. Non-lawyers will however have their views about us vindicated by the fact that the employer, rather than attempting to justify its decision, used the argument that her case actually rested on the fact that she wasn’t disabled. In those circumstances, since the DDA only protects the disabled, her claim must fail. This is a typical “Yes we’re complete shits, but the law allows us to be” attitude, and one that won through.

Note the difference with other discrimination legislation – that doesn’t create a protected class of person, it simply sets out the grounds on which you cannot discriminate. The nature of the complainant is irrelevant; sack a man because he’s gay and it doesn’t matter a jot whether or not he is. If you use the example of poor old Graeme Le Saux, called gay by his fellow footballers simply because he was nifty at the Guardian crossword; his treatment was on the grounds of sexuality, not because of his sexuality.

Another result of this different approach is that non-disabled workers have no protection at all – if someone else applying for the same job as you has worse qualifications, but is hired because his wheelchair will look good in their recruitment brochures, you’ve no claim whatsoever.