Veitch Penny LLP - Exeter | Crediton, Devon

Case

Hutchinson 3G UK Ltd v Mason
Employment Appeal Tribunal - (16 July 2003)

Issues

(1) Disability discrimination
(2) Unfair dismissal
(3) Definition of disability

Facts

Mason had been employed as a Strategic Investment Manager. He has completed a medical questionnaire but omitted to disclose his and his family’s history of depression. After approximately 10 months, Mason tried to commit suicide and failed to return to work.

Mason’s entitlement to Statutory Sick Pay lasted for 20 days. He met with his employer in order to extend his sick pay period. Mason stated that he required in-patient treatment for a post-viral infection and that he was taking anti-depressants. He did not reveal that he was using cocaine and was suffering from clinical depression. In a later telephone conversation Mason revealed more details about his condition and that he needed further treatment.

The employer terminated Mason’s Contract of Employment on medical grounds but did not consider the possibility of Mason’s return to work on a phased basis.

Proceedings were commenced for unfair dismissal and disability discrimination and the employer responded by stating that Mason has been dismissed for dishonesty.

The Employment Tribunal found:-

1. The employer was not aware that Mason was clinically depressed.

2. Mason had not admitted to lying but had mentioned his addiction in the telephoned conversation.

3. Mason had not informed his employer that he would be out of contact for 4 to 6 months whilst receiving further treatment.

4. The principal reason for Mason’s dismissal had been absence rather than dishonesty. Mason’s complaint of unfair dismissal succeeded on the basis that the procedure itself had been unfair rather than the original reason for it. The Tribunal also found that Mason had been treated less favourably than a person not suffering from depression.

The employer appealed the decision.

Decision

The Appeal would be dismissed.

There was no basis of law to interfere with the Employment Tribunal’s decision, on either the reason for it or the procedure itself.

Comments

The Tribunal was entitled to find that irrespective of his addiction, Mason had a depressive disorder which was sufficient to cause his absence. It was confirmed that the dismissal was because of his disability and was accordingly discriminatory.