Veitch Penny LLP - Exeter | Crediton, Devon

Case

Hewett v Motorola Ltd
Employment Appeal Tribunal - (16 February 2004)

Issues

(1) Disability discrimination
(2) Impairment
(3) Adverse effect on normal activities

Facts

Timothy Hewett had been employed by Motorola as a Firmware Engineer from August 2000 until October 2002.

Mr Hewett commenced proceedings against his employer alleging that he had been unlawfully discriminated against in breach of the Disability Discrimination Act (DDA). A person is a “disabled person” for the purposes of the Act, only if they have an impairment that has an “adverse effect” upon that person’s “ability to carry out normal day-to-day activities. One of the list of normal day-to-day activities is “memory or ability to concentrate, learn or understand”. Mr Hewett claimed that he had been less favourably treated as regards a performance assessment and that his employer had failed to make reasonable adjustments.

A preliminary issue arose as to whether Mr Hewett was a disabled person as defined by the DDA. Mr Hewett argued that he had been diagnosed with autism, in the form of Asperger’s Syndrome, which meant that without medication he had difficulty in remembering the names of familiar people and was unable to adapt to changes in his work routine. This may have meant that he needed special assistance in relation to his management. In response, Motorola contended that Mr Hewett exhibited high functioning autism which had no substantial effect on his memory or ability to concentrate, learn or understand. They accepted that he might have mild difficulties in understanding the subtleties of human non-factual communication.

At first instance, the tribunal found that Mr Hewett suffered from a clinically well-recognised mental disorder, with a long-term effect. It concluded that the condition did not have an adverse effect on his ability to carry out normal day-to-day activities. Consequently, he was not considered disabled within the meaning of the DDA, and his claim was dismissed.

Mr Hewett appealed the decision contending that the tribunal had failed to deal with the issue as to whether an inability to understand through “the subtleties of human interaction” could fall within the definition of disability. Motorola contended that the DDA had been drafted to cover learning difficulties rather than life skills and accordingly the tribunal did not need to consider the particular circumstances on Mr Hewett’s case.

Decision

The appeal would be allowed.

The Employment Appeal Tribunal took a broader view of the definition and found that the original tribunal had been incorrect in not accepting that Mr Hewett’s ability to understand had been affected by his impairment. The tribunal should however have acknowledged that someone who had difficulty in understanding a normal social interaction could be regarded as having his or her understanding affected. The concept was not limited to simply an ability to understand information, knowledge or instructions.

Comments

The EAT remitted the case to the tribunal to determine whether Mr Hewett’s impairment had the necessary substantial effect on his ability to understand, as this issue remained to be determined.