Jason Elliott was called to the Bar of Northern Ireland in 2013 and is the Associate Head of School of Law at Ulster University. As a practising barrister, he has developed a largely civil practice representing individuals, companies and public bodies in litigation. This covers a wide range of areas including personal injuries, wills and employment law. In terms of employment law, he has represented both applicants and respondents in the Industrial Tribunal. At Ulster University, Jason lectures extensively on the civil areas of practise such as Equity and Trusts and delivers employment law lectures for both undergraduate and postgraduate students.
Background:
The issue in this case related to the decision of the Industrial Tribunal that the claimant was not disabled for the purposes of the Disability Discrimination Act 1995. As a result of that finding, the Tribunal found that they did not have jurisdiction.
It was agreed by the experts that the claimant had a long-standing generalised anxiety disorder but the main element related to autism spectrum disorder. The claimant states there were aspects in which his memory or ability to concentrate learn or understand were affected, taking part in normal social interaction and forming social relationships. The latter two being inserted as a result of the Autism Act (NI) 2011.
Outcome:
The Court of Appeal restated the approach to determining disability stating the following:
Whether the person has a physical or mental impairment;
Whether the impairment affects the person’s ability to carry out normal day to day activities;
The effect of such activities must be ‘substantial’ [i.e. more than trivial as set out in Goodwin v The Patent Office]; and
The effects must be long term.
The respondents argued that the amendments made by the Autism Act 2011 only applied to those who had a diagnosis of autism. The claimant did not have such a diagnosis. The Court of Appeal stated that such a position was plainly incorrect as a matter of statutory construction. This is especially so considering that there is no limitation or authority stating such limitation from the legislation. Additionally, in Sheridan v Peninsula [2018] from the NIIT the 2011 legislation was applied without such restriction. Accordingly, the Court outlined that the jurisprudence could not be clearer – that one had to look at the symptoms of the disability and not the label. A quote from Judge Cockcroft was used stating:
‘There is too much emphasis on attaching a label to the claimant’s condition and it is the contents of the jar, not the label that matters’
Accordingly, the respondent’s arguments were rejected. The Tribunal could not have reasonably reached the decision that it made. There was a need to grapple with the underlying evidence and apply it to the way in which a disability would be classified within the confines of the 1995 Act. Accordingly the appeal was allowed.
Practical Guidance for Employers:
This Court of Appeal authority provides a useful examination of what is required in determining whether an individual has a disability especially when it centres upon the like of autism spectrum disorder which may not be diagnosed at the time. To this end, the court makes it clear that the importance is what is ‘in the jar’ rather than what is on the label. Therefore, it should be an examination of the actual impairment and its effect rather than whatever label may or may not be given to it.
The Judgement can be viewed here: Court of Appeal Judgement: Peter Kelly v Departments of Communities and Finance (equalityni.org)
NI Tribunal decisions are available on the OITFET website:
http://www.employmenttribunalsni.co.uk/
Continue reading
We help hundreds of people like you understand how the latest changes in employment law impact your business.
Please log in to view the full article.
What you'll get:
- Help understand the ramifications of each important case from NI, GB and Europe
- Ensure your organisation's policies and procedures are fully compliant with NI law
- 24/7 access to all the content in the Legal Island Vault for research case law and HR issues
- Receive free preliminary advice on workplace issues from the employment team
Already a subscriber? Log in now or start a free trial
