Disability and Employment Law - the Case of Chris vs Bill - Research Paper Example

Disability and Employment Law- the Case of Chris vs. Bill of the of the Disability and Employment Law- the Case of Chrisvs. Bill Introduction Before the Industrial Revolution, employment law in the UK was almost non-existent, with the entire basis of employment according to what the employer determined to suit his fancy. The purpose of Employment Law in every country is therefore to protect the rights of the worker whether a citizen or immigrant, and to prevent any mistreatment of them at the hands of employers. In the UK, terms of employment of any job are usually determined by the applicable laws and general practices regarding conditions of employment as set out in the respective Contract of Employment that is read and signed by the employee. However both the employer and employee are governed by and have different rights, duties and responsibilities under various laws concerning health and safety, discrimination etc. Benefits such as salary, overtime and other compensation must also be worked out and paid. The case at hand will focus on the rights and duties of Chris and Bill under the Disability Discrimination Act 1995 & 2005 and the Equality Act 2010, also referring to decisions in related cases as to the remedies available for both employer and employee. What is a Contract of Employment? A contract of employment is a written document given by the employer to the employee governing the terms of employment. The general terms often relate to nature of work, duties and responsibilities, place of work and compensation and benefits etc. If there is no written contract of employment, the terms of employment are then governed by the law of the land and the general conditions of employment as applicable in that specific sector of industry that the employee is working under. It is important that the employee know his rights and duties and wherever possible insist that the terms of employment be in writing. This helps in the quick resolution of disputes should any occur later on. The employee can demand that the terms of employment be put in the form of a written agreement after two weeks of commencing employment at a new workplace (www.direct.gov.uk). The Relevant Laws Governing Employment in England and Wales Previously there was hardly any written law governing the terms of employment in the UK. Cases used to be decided by precedent or in the light of the particular individual circumstances applicable to the case as deemed by the Judge presiding over it. However certain extenuating circumstances demanded that the law be codified. For example, the right to serve notice or terminate an employee, the right to claim rights and damages for unfair dismissal, keeping trade secrets, not joining certain competitors and so forth all called for the laws and general principles to be laid out in writing for the convenience of the employers, the employees and the Courts. In many cases they serve as guiding principles as to what is to be done in a given circumstance. The Disability Act 1995 and as amended in 2005 is of particular significance in the case at hand because Chris can be adjudged to be mentally impaired because of his bi-polar disorder condition. The mistreatment of Chris at the hands of Bill, his line manager can also be challenged under the vicarious liability of the employer. The Equality Act 2010 and Employees with Psychological/Mental Conditions One purpose of the Equality Act 2010 was to consolidate the provisions of the Sex Discrimination Act 1975, the Equal Pay Act 1970, the Race Relations Act 1976 and the Disability Discrimination Act 1995. The second purpose was to reflect the statutes that protect against discrimination in employment on the grounds of age, religious belief or sexual orientation. The Equality Act 2010 thus seeks to implement the earlier provisions of the Disability Discrimination Act 1995 and as amended in 2005. It seeks to make the workplace a friendly environment for both normal and disabled people- whether this disability is physical or mental- by providing them reasonable work, making reasonable allowances for performance and making reasonable adjustments to the physical facilities of the workplace. It applies to both public and private employment (www.lawcom.gov.uk). Disability Discrimination Act 1995 (and as amended in 2005) Under the Disability Discrimination Act 1995, it is unlawful for a firm to treat a disabled person less favourably just for reason of his disability. Employers must also make reasonable adjustments for disabled people to perform at work- such as giving them extra help or making other changes in this respect, and make reasonable adjustments to the physical facilities to enable them to carry out their duties in the best possible manner. Lewisham London Borough Council v. Malcolm [2008] UKHL 43 is a case in point. Kinds of Disability, Harassment and Victimization Section 1 of the DDA 1995 defines a disability as a physical or mental impairment that has a long term adverse effect on the person’s ability to carry out normal duties. Section 1(1) of the Act deals specifically with mental impairment. In the case cited, Chris was certified as suffering from bi-polar disorder for the last four years so there is no doubt about it and this fact was well known to his employers, the Local Council. It was also known that Chris was taking strong drugs and attending meetings by a mental team that was monitoring his mental health. The downturn in Chris’s condition was caused by the unsympathetic attitude of his new line manager Bill, who first refused to let Chris off to attend a mental health meeting, and then slapped on a disciplinary action when Chris attended it anyway. It is quite likely that Chris had been attending these meetings for the last four years, since first being diagnosed with bi-polar disorder. The stress of being put on disciplinary has resulted in Chris becoming more moody and less tolerant at work- which is in line with his mental impairment. Then when Chris heard Bill and other co-workers referring to him as ‘looney tunes’ while conversing about him in his workgroup, it was the last straw and he just walked out of his workplace. Not only was he being treated unfairly but ridiculed as well. The new line manager Bill is guilty of both harassment and victimization, besides treating Chris unfairly given his mental impairment. Section 26 of the Equality Act 2010 deals with harassment and Section 27 with discrimination (Guzick, 2006, 967-69). Breach of Duty by Bill-the New Line Manager/ Employer Was Bill’s refusal to allow Chris to attend the meeting by the mental health team a breach of duty? It can certainly be assumed so, since Chris was known to have bi-polar disorder and this fact was known by Bill as well as many of Chris’s co-workers. Under Section 13 of the Equality Act 2010, Bill is guilty of discriminating against Chris by refusing to allow him leave to attend the mental health meeting that was necessary for his mental health. Indeed the laws are so strict in regard to such discrimination that in Coleman vs. Attridge Law (2008) C-303/06 and [2007] IRLR 88, it was held that the mother of a child with a physical impairment was guilty of being discriminated against, given that her employment was terminated on these grounds, although she did not herself suffer from the disease. In fact by being a representative of his employer, Bill could very well entangle his employer in a case of discrimination, harassment and victimization. A comparative case in point is Environment Agency v. Rowan UKEAT [2007] 0060/07. If the employer is called to Court it is most likely that it will disassociate itself from the actions of the new line manager Bill because it can prove that it has never discriminated against Chris in the light of his mental condition in the past. The History of Chris’s Condition and its having no impact on His Previous Work Performance In his defence, Chris or his legal representative is most likely to use these factors as proof that it was Bill’s unfair treatment of Chris given his mental impairment that led to the recurrence of his bi-polar disorder symptoms and his subsequent disgust and walking away from his employment. Quite possibly, even a normal person would be appalled at overhearing Bill and his co-workers call him such names as ‘looney tunes’ in their conversation. The court would most definitely sympathize with Chris and would rightly treat Bill’s uncalled for actions as proof of disability discrimination, harassment and victimization. Chris’s legal counsel would also be able to prove that despite Chris’s condition of bipolar disorder for the last four years, his performance and attendance record were good, indicating that his mental impairment had no impact on his work. Rather it was the unsympathetic attitude of Bill that had led to Chris’s present condition leading to his walkout from his employment (www.lawgazettco.uk). Bill’s Unsympathetic Attitude towards Chris and putting him on a Disciplinary- Was it Justified? Given that Bill knew Chris’s mental impairment, as the employer’s representative he should have shown more caring, tact and understanding of Chris’s condition. It would have helped if he had talked to Human Resources or Chris’s last line manager on how to deal with the situation if it was new to him. By acting inhumanely and irresponsibly, he could not only be held personally liable but his employers could also have him removed from his post or job for his uncaring attitude, harassment and victimization of Chris. Chris here has shown more sense in attending the mental care meeting- he can rightly claim that he had been doing so for the last many years after getting permission from his previous line manager. However he had been refused permission by Bill even though he had applied for leave in a similar manner as before. Bill’s unsympathetic attitude towards Chris’s condition is clear from his refusal to grant Chris leave even though he must have been aware that it was necessary as part of Chris’s treatment for his bipolar disorder mental impairment. Given Chris’s condition, Bill’s action is unreasonable and unjustifiable (www.lawcom.gov.uk). Breach of Implied Duty to Treat Employee with Respect Another point that can be raised in this case is the breach of implied duty to treat employee with respect. It is one thing to have an uncaring attitude but quite another to treat a disabled employee with contempt and disrespect. Bill publicly referring to Chris as ‘looney tunes’- and the corresponding loss of respect, leading to shame and ridicule among his fellow workers was enough to have Chris leave his employment in disgust. Even a normal person would have been right to do so. It would have been quite embarrassing for Chris to face his fellow workers after this incident. The decision to return to employment is clearly Chris’s own and cannot be ascertained with certainty, unlike the case of Clark v. Novacold Ltd. 1999 IRLR 318, CA. On the other hand, Chris cannot claim against his employer for vicarious liability if he knows that Bill is the perpetrator of the incidents against him- similarly Bill cannot absolve himself from liability, as in the decision taken in Majrowski v. Guy and St. Thomas’ NHS Trust [2007] 1 AC 224. Was Chris Right to Walk Out and Could He Have Helped It i.e. Done Otherwise? In the light of the circumstances and events presented in the case, Chris was indeed right to walk out in the heat of the moment. It would have made no sense to stay on with the same group of supervisors and workers who considered him a weirdo because of his mental impairment. Rather than his supervisor controlling the situation, we find that Bill is fanning the flames of disgust and ridicule- which is highly irresponsible and condemnable. Chris could consider legal action against both his line manager Bill and his co-workers. Baynton v. Saurus General Engineers Ltd. [2000] ICR 375 has much similar circumstances. Constructive Dismissal and Right to Compensation In fact, the action of Chris walking away from his job might be treated as a constructive dismissal because the actions and attitude of his line manager and co-workers were creating conditions where Chris and indeed, anyone else would find it difficult to work. In fact the remarks of Bill and Chris’s co-workers bring to mind a similar case, Isle of Wight Tourist Board v Coombes [1976] IRLR 413 where the Director of the company referred to his secretary as a ‘bitch’ thereby violating the confidentiality of the relationship between employer and personal secretary. In this case Chris would probably be entitled to compensation till his age of retirement under normal circumstances (www.swab.co.uk). What Are the Remedies Possible Now? Chris could bring in a case for unfair treatment at the hands of his line manager Bill, outlining all the events from his initial diagnosis to his last day at the workplace. This would cover his years of service, positive appraisals and performances, previous support of his earlier line manager and others in Human Resources as contrasted with the rude and discriminatory attitude of Bill, his refusal to grant Chris leave, disciplinary action and the resultant stress and culminating in the name calling incident that compelled Chris to walk off from his workplace. Chris’s counsel could charge both Bill and Chris’s co-workers for their name calling and ridicule of Chris. In Child Support Agency v. Truman 2009 UKEAT, it was held that a correct comparison would be a normal worker. Alternatively Chris could also choose to settle the case out of court, with Bill apologizing and promising to be more fair and humane from now on. Bill’s employer could even throw Bill out because of his discriminatory treatment of Chris, his harassment and victimization. Chris would have to bring action against Bill within 180 days of leaving his employment, in a Court of Law. The case will be decided by an Employment Tribunal (www.findlaw.uk). References Guzick, K. (2006). Gender and Crime: Patterns in Victimization and Offending. Law and Society Review, Volume 40, Issue 4, pp 967-69. The Equality Act, 2010. The Disability Discrimination Act, 1995 The Health and Safety at Work Act, 1974. The Infolaw website at http://www.infolaw.co.uk The Swarbrick website at http://www.swab.co.uk The Law Society Gazette at http://www.lawgazettco.uk The New Law Journal at http://www.butterworths.co.uk/content/nlj The Law Commission at http://www.lawcom.gov.uk The website of the UK Government at www.direct.gov.uk Read More