Veitch Penny LLP - Exeter | Crediton, Devon

Case

Mr K Dunham v Ashford Windows
Employment Appeal Tribunal - (23 March 2005)

Issues

(1)Disability Discrimination
(2)Mental Impairment
(3)Learning Disability

Facts

Ashford Windows (“the Company”) employed Mr Dunn as a fork-lift truck driver and yardman in September 2002. He was dismissed in December 2002. He made a complaint to the Employment Tribunal that the Company had been guilty of disability discrimination in dismissing him and by failing to make reasonable adjustments for him. Initially, he said that his disability was dyslexia but it became clear that his problems were broader. He was permitted by the Tribunal to amend his application on the basis that he was disabled “due to severe reading and writing difficulties”.

In response the Company denied that he was disabled alleging that whilst he may suffer from learning difficulties, he did not have a clinically well recognised mental illness or specific mental impairment. The Disability Discrimination Act 1995 (“the Act”) states that a person has a disability as defined if he has a physical or mental impairment which has a substantial and long-term adverse effect on his abilities to carry out normal day to day activities. Mental impairment is then defined by the Act as including an impairment resulting from or consistent with illness but only if the illness is “clinically well recognised”. The Company also alleged that they had done everything to keep Mr Dunham in work but he had been unable to learn do his job safely and efficiently and had to be dismissed.

At first instance the Tribunal concluded that Mr Dunham had not established a specific mental impairment or clinical condition and therefore they were not permitted to conclude that he had a mental impairment for the purposes of the Act,. His claim was dismissed on that basis.

Mr Dunham challenged the decision by appealing to the Employment Appeal Tribunal (EAT).

Decision

The EAT considered evidence about Mr Dunham’s condition. Mr Dunham had a poorly developed long term auditory memory skills and his short-term memory was weak. He could make no attempt to write any original material (as opposed to copying of text). His condition was described as generalised learning difficulties which would govern the type of work he could satisfactorily manage. These had been present at birth and would remain relatively constant to the present and throughout his lifetime.

The EAT considered the provisions of the Act and the number of relevant authorities. Mr Dunham’s Appeal was allowed and the EAT substituted the earlier tribunal’s decision by stating that Mr Dunham did indeed suffer from a mental impairment for the purposes of Section 1 of the Act.

The matter was remitted to a Tribunal for consideration of the remaining issues which arose in the case including the issue of whether Mr Dunham’s impairment had a substantial and long term adverse affect on his ability to carry out normal day to day activities.

Comments

This case has expanded the remit of the Act to also include learning difficulties which are sufficiently serious even though the mental impairment did not arise from mental illness. The EAT went on to comment that in the case of a mental impairment which did not consist of a mental illness, the Tribunals are likely to need evidence of a suitably qualified expert to the nature and severity of impairment and for evidence of a particular condition.

Employers should now be aware that following this case employees with learning disabilities may now be protected by disability discrimination legislation.

Rachel Bickle – 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