Veitch Penny LLP - Exeter | Crediton, Devon

Case

High Quality Lifestyles Limited v Watts
Employment Appeal Tribunal - (10th April 2006)

Issues

(1) Disability Discrimination
(2) HIV
(3) Dismissal Procedure

Facts

Mr Watts was employed by the company in March 2004 as a Residential Support Worker. He was employed to work with people with severely challenging behaviour, who sometimes scratched and bit the support workers employed by the company to the point of drawing blood. He did not disclose his HIV status on the medical questionnaire he submitted to his employer at the time of employment. He told his employer he was HIV positive in July 2004. A risk assessment was undertaken and he was asked to consent to his HIV status being disclosed to the local social services department, service users and the employers staff. Mr Watts refused this request.

Mr Watts was suspended on the basis of his dishonesty regarding the non-disclosure of his medical condition. A disciplinary hearing was arranged. The risk assessment found that injuries involving broken skin and biting were a common occurrence.

Mr Watts lodged an internal appeal of his dismissal and also submitted a grievance about the way he had been treated and the fact that his HIV status had been disclosed. The appeal of his dismissal was dismissed by the Managing Director who found that reasonable adjustments to accommodate him had been properly considered.

Mr Watts then made a claim to the employment tribunal of disability discrimination. He alleged that his suspension, the disclosure of his condition to other staff members and his dismissal amounted to less favourable treatment for the purposes of the Disability Discrimination Act.

At first instance the Tribunal found that there had been a flaw in the risk assessment and that the employer had failed to justify the less favourable treatment of Mr Watts. It found that Mr Watts’ suspension and subsequent dismissal was likely to have been on the grounds of the effect of his condition i.e. the likelihood of its transmission to them. Accordingly the Tribunal upheld his complaint of direct disability discrimination. The employer appealed.

Decision

The Employment Appeal Tribunal (EAT) would allow appeal in part and found that Mr Watts had not been directly discriminated against when he was suspended and dismissed. It found that the employers had adopted the course of action that it did, not because of Mr Watts’ HIV status but to remove the risk of transmission to other people. The EAT also felt that there had been no breach of Mr Watts’ confidentiality.

However the EAT did find that the employer had not been able to justify its discrimination against Mr Watts. The EAT concluded that the company had not carried out a proper investigation nor had an adequate risk assessment of the situation been undertaken. They had failed to consider what reasonable adjustments they could make in order to maintain employment. Instead they had just imposed a requirement that a support networker should not pose the risk of transmitting a condition such as HIV. This placed him at a substantial disadvantage compared to someone who was not HIV positive.

Comments

Changes to the Discrimination Act in 2004 created three definitions of unlawful discrimination: a) failure to make reasonable adjustments, b) direct discrimination and c) disability related discrimination. Commentators have argued that this first Court of Appeal decision on the new definition is a restrictive view of those definitions because of its reliance on finding comparable circumstances. It can be argued that if comparable hypothetical circumstances are defined as sufficiently narrowly it is always going to be possible that the comparator would have been treated in the same way.

Rachel Billen – Associate Solicitor, Commercial Department at Veitch Penny.
Tel: 01392 278381, Fax: 01392 410247, Email: This e-mail address is being protected from spambots. You need JavaScript enabled to view it

This Employment Law Update does not constitute legal or other professional advice and should not be relied on as such. You should take specific advice regarding your circumstances before taking any action based on the information contained within this Update.