Appeal note. The House of Lords reversed the above
decision and ruled that where an employee has become
disabled and is in danger of losing the employment
because of inability to perform the manual tasks required
but is capable of doing other jobs within the organisa-
tion the employer is under a duty under the DDA 1995,
s 6 to take reasonable steps to prevent that disadvantage.
These may, depending on the circumstances, extend to
arranging a transfer to a sedentary post at a higher grade
without requiring the worker to compete with other
applicants. The case was remitted to the employment
tribunal for reconsideration.
Exemption for small businesses
Section 7(1) provides that nothing in Part II of the Act
(Employment) shall apply to an employer who has fewer
than 15 employees. This exemption was removed by
the Disability Regulations 2003.
DDA 1995 requires the taking into account of em-
ployees of associated companies, such as wholly owned
subsidiaries (see Hardiev CD Northern(2000)).
Validity of agreements
Section 9 provides that any term in a contract of em-
ployment or other agreement is void if, e.g. it requires
a person to do anything which would contravene Part
II or prevent a complaint to an employment tribunal
unless in the latter case the exclusion is in writing and
follows independent legal advice or the matter has been
settled by reference to a conciliation officer.
Discrimination by other persons
An important provision is contained in s 12 which pro-
vides protection for disabled contract workers who work
for an employment business. The hirer must not discrim-
inate against them. Here the following case is instructive.
Victimisation
It also amounts to discrimination under the Act if some-
one is treated less favourably because they have brought,
or given, evidence in claims under the Act, or merely
made allegations that the Act has been infringed.Constructive dismissal
In Catherallv Michelin Tyre(2003) the EAT disagreed
with earlier rulings of the EAT and stated that dismissal
under the DDA 1995 included constructive dismissal.
The Disability Regulations 2003 support this statement
by introducing a provision into the 1995 Act that dis-
missal includes the termination of a person’s employ-
ment by the giving of notice in circumstances such that
he or she is entitled to terminate it without notice by
reason of the employer’s conduct (see reg 5, inserting s
4(5)(b)). This regulation operates from 1 October 2004.Enforcement
Under s 8, employment complaints are to be presented
to an employment tribunal. Regulations allow a re-
stricted reporting order where ‘evidence of a personal
nature’ is likely to be heard.
The claim must be brought within three months of
the act complained of and the tribunal may take any of
the following steps as it considers just and equitable:
■make a declaration of the rights of the complainant as
a basis for these to be adopted by the employer;
■order monetary compensation with no limit;
■recommend steps to be taken by the employer within
a specified period to obviate or reduce the adverse
effects of which the employee complains.Part 4Business resources
538
MHC Consulting Services Ltdv Tansell
(1999)
T was employed by I Ltd which was a service company
of which he was the sole shareholder. I Ltd offered T’s
computer services to third parties and I Ltd contracted
with MHC, which in turn contracted with Abbey Life, the
end user. T was, therefore, subject to the control of Abbey
Life. T brought a disability discrimination claim against
Abbey Life because it had rejected his services becauseof his disability. This caused MHC to do the same. The
EAT had to interpret s 12 and decided that, although T
was not employed by Abbey Life, his remedy was against
Abbey Life. Otherwise MHC, if the principal, could justify
its actions by reference to the rejection by Abbey Life.
Comment.
(i)The case widens the scope of s 12 by allowing it to
accommodate a series of contracts, the end user being
the principal for the purposes of s 12.
(ii)In any case, the discrimination regulations applying
to disability, sex, race, sexual orientation, and religion or
belief now protect contract workers.