Tess' situation is one that will involve various aspects of employment law. The issues which will arise are whether Tess is an employee, and if so has she suffered wrongful, or unfair dismissal,

In the case of Motorola v Davidson which concerned an agency worker, it was held that ‘in deciding whether the right [of control] exists in a sufficient degree to make one party the master and the other his servant. The right need not be unrestricted.’ It appears that Dolby Hospital have sufficient control of Tess as they control her work hours, holiday, uniform, and tasks. The agency however merely pays Tess and seems not to give her any orders as such. It appears that Tess fulfils the criteria of being an employee of Dolby Hospital.

Obiter support has been given to this view by the majority in Dacas that agency workers are ‘more likely to be regarded as an employee of the end-user.’ Dacas has recently been followed by Royal National Lifeboat Institution v Bushaway, and Cable and Wireless plc v Muscat. Indeed in Muscat it was held ‘it would be a brave Employment Tribunal that decided it should not follow the decision in Dacas because it considered it was decided per incuriam.’ Dacas is good precedent, which in this situation would mean Tess is likely to be found an employee of Dolby Hospital.

Of minor note is the issue of Dolby Hospital sending Tess a letter of dismissal, perhaps this is an acknowledgement of being her employer, for how else can they dismiss her unless such a relationship is in place.

Regarding wrongful dismissal: ‘The notice required to be given by an employer to terminate the contract of employment … is not less than one week's notice for each year of continuous employment if his period of continuous employment is two years or more but less than twelve years.’ 

Tess should have been given at least two weeks notice in accordance with the Employment Rights Act 1996, s.86. The fact that she had a month off for depression should not affect her continuity of employment, as s.212(a) states that if an employee is ‘incapable of work in consequence of sickness or injury,’ it will not affect continuity of employment. Tess will be entitled to the net earnings she would have earned during her notice period as damages.

Usually there is a three month time limit to bring a claim for unfair dismissal. The time limit runs from the date of dismissal. Unless it was not 'reasonably practicable' for a dismissed employee to bring their claim in that 3 month period, the claim will not be heard (Marks & Spencer v Williams-Ryan).

Tess may have been dismissed unfairly, the remedies for which include reinstatement, re-engagement, or compensation. s.94(1) of the Employment Rights Act 1996 states that ‘an employee has the right not to be unfairly dismissed by his employer.’ However this right is not without its qualifications. Following The Unfair Dismissal and Statement of Reasons for Dismissal Order 1999, the minimum period of employment for an unfair dismissal claim is one year; Tess has been with Dolby Hospital for two and a half years.

Tess must bring the claim to an employment tribunal within three months of dismissal or she may not be eligible to claim. ‘An employee is dismissed by his employer if … the contract under which he is employed is terminated by the employer … and the reason for the dismissal is to be taken to be the reason for which the employer's notice is given.’ Which in the case would be gross negligence.

For Tess to succeed in her claim it must be shown that her dismissal did not fall under the potentially fair reasons under s.98(1)(b) ERA 1996 which will undoubtedly be put forward by her employer The reasons likely applicable here are capability or qualifications; conduct; and some other substantial reason. Because Dolby Hospital dismissed Tess for gross negligence it may mean that only one incident would be required to constitute sufficient grounds so long as they are serious enough (Taylor v Alidair Ltd).

Once a s.98 ERA 1996 reason had been put forward the court will look at how fair that reason is. This will be looked at under two headings, both of which must be satisfied. The first is whether the actions of the employer ‘fell within the band of reasonable responses which a reasonable employer might have adopted.’ The tribunal will be asking themselves was such a response from an employer reasonably foreseeable, if so then the dismissal was fair.

The second heading is procedural fairness ‘an employee who is dismissed shall be regarded for the purposes of this Part as unfairly dismissed if … one of the procedures set out in Part 1 of Schedule 2 to the Employment Act 2002 … has not been completed, [and is] attributable to failure by the employer to comply with its requirements.’ Dolby Hospital as a minimum ‘must follow a three-step procedure which involves: … a statement in writing of what it is the employee is alleged to have done; … a meeting to discuss the situation, and; … the right of appeal.’

‘If an employer does not follow the minimum procedure then an employment tribunal may judge the dismissal ‘automatically unfair’. The compensation will increase or decrease – by between 10 and 50 per cent.’ Though failure by an employer to follow the statutory procedures will not necessarily be regarded as making the employer's action unreasonable by itself if he shows that he would have decided to dismiss the employee anyway. However Tess stands a good chance of claiming unfair dismissal.

In regards to disability discrimination, The Disability Discrimination Act 1995 s1 states that: ‘a person has a disability for the purposes of this if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’ Of interest in this situation is s.4B DDA 1995 which protects non-employees, such as agency workers from disability discrimination, meaning Tess does not have to show she is an employee for the purposes of this act.

The case of Goodwin gives step by step guidance on how to decide if a person is disabled in accordance with s1 DDA 1995. The first step asks us to consider ‘does the applicant have an impairment which is either mental or physical?’ Tess’ problem is mental, however to show that it is so will be costly as the Act follows a medical model which whilst being based in objective facts, will undoubtedly require the testimony of experts, who will undoubtedly be expensive.

As discussed courts will only include medically recognised illnesses, ‘if there is doubt as to whether a mental illness falls within the definition, it would be advisable to ascertain whether the illness is mentioned in the World Health organisation's International Classification of Diseases.’ The World Health Organisation recognises various types of depression (See Mood [affective] disorders (F30-F39)) at least one of which would apply to Tess, and most people.

s68 DDA 1995 states that ‘the fact that an impairment would be a mental impairment for the purposes of [the Mental Health Act 1983] does not prevent it from being a mental impairment for the purposes of [the Disability Discrimination Act 1995],’ giving a statutory definition of a mental illness. The potential definitions of a mental illness are quite wide, as definitions may be taken from sources, it would be wise to take heed of past precedents.

The second question is, ‘does the impairment affect the applicant's ability to carry out normal day-to-day activities?’ Day-to-day activities are considered ‘easily recognised, but defined with difficulty.’ This was found to be the case in Greenwood where the claimant was also suffering from depression, and was absent because of his illness.

The third question is, ‘is the adverse effect substantial?’ Substantial means ‘more than minor or trivial.’ Factors such as how long it takes to complete tasks and the manner tasks are done in will be taken into account. Again this is a question of fact for the tribunal. It has been held by the courts that when making a decision as to whether a condition has a substantial adverse effect, the tribunal should concentrate on what a claimant cannot do, or only do with difficulty, and not what he can do (Leonard).
The final question is, ‘is the adverse effect long-term?’ The effect is long term as defined by Sch.1 (2)(1) DDA 1995 if ‘(a) it has lasted at least 12 months; (b) the period for which it lasts is likely to be at least 12 months; or (c) it is likely to last for the rest of the life of the person affected.’

The questions used to guide courts from Goodwin will show if Tess is disabled cannot be answered from the facts given in the problem, in reality ‘it is virtually essential … to call expert medical evidence,’ because the onus of proof is on the employee to show that they are disabled. However it is not for the medical profession to decide if a person is disable, rather it is for the courts to decide if someone falls under the definition given by statute (Abadeh).

Let us continue assuming now that Tess is disabled. s.3A(1) DDA 1995 states that an employer discriminates against an employee if ‘for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified.’ However the Act goes further by stating in s.3A(4) that treatment cannot be justified if it amounts to direct discrimination.

However s.4A(3) which states: ‘Nothing in this section imposes any duty on an employer in relation to a disabled person if the employer does not know, and could not reasonably be expected to know in any case, that that person has a disability.’ The scenario does not specifically mention Tess giving notice of her disability, though she does mention that her job is giving her stress which is perhaps sufficient notice, Dolby hospital may try to use lack of knowledge as a defence and claim they are ‘entitled to assume that an employee can cope with the normal pressures of the job unless they know of some particular problem or vulnerability.’

The courts are however more willing to conclude that health care employers should reasonably know more about disabilities that the average employer. The courts 'considered it important to bear in mind that the … [NHS Trust is] not entirely ignorant of health matters … [and] it is therefore reasonable to assume a higher degree of knowledge than might be the case with other witnesses.' Thereby when Tess complained of stress at work it should have been too sufficient notice for Dolby Hospital.

s.3A(2) DDA 1995 states that ‘for the purposes of this Part, a person also discriminates against a disabled person if he fails to comply with a duty to make reasonable adjustments imposed on him in relation to the disabled person.’ The failure must be one which places the employee at a substantial disadvantage. In the case of Archibald the House of Lords saw this as a ‘duty positively to discriminate.’

‘Where a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent … that effect.’

‘Examples of steps which … [employers] may need to take in relation to a disabled person in order to comply with a duty to make reasonable adjustments [include] … (b) allocating some of the disabled person's duties to another person; (c) transferring him to fill an existing vacancy; (e) assigning him to a different place of work or training; (g) giving, or arranging for, training or mentoring (whether for the disabled person or any other person); (l) providing supervision or other support.’ However the adjustments must be related to work, it is not a duty to provide personal carers (Kenny).

If Dolby Hospital were under a duty to make adjustments, then they were also under a duty to obtain a proper assessment of Tess’ disability, how the disability would affect the employees ability to work, and changes which would need to be implemented throughout the workplace to minimise the effects (Mid Staffs v Cambridge). It is not Tess’ duty to suggest any changes which may be required.

s3A(3) of the DDA 1995 states that discriminatory treatment is only justified ‘if, but only if, the reason for it is both material to the circumstances of the particular case and substantial.’ The term material has been held by the courts to mean ‘significant and relevant.’ An employer cannot use the same factors to justify the failure to make reasonable adjustments and to determine whether any adjustments made are reasonable (Collins v Theatre Board).

Factors which may constitute justification, include, the extent to which it is practicable for Dolby Hospital to take the step, the costs which would be incurred, the extent of resources, and the availability to Dolby Hospital of help in taking the necessary steps. Dolby Hospital may try to argue that they are short of staff, however it should not be too onerous a task to switch Tess’ duties with a nurse from another department.

If a court or tribunal were to rule in favour of Tess, a declaration would be made, and compensation ordered, which may include an award for injury to feelings. In disability discrimination compensation is unlimited.

In summary of my conclusions Tess has suffered wrongful dismissal as she was given no notice. Tess will likely be able to claim unfair dismissal because of a procedural unfairness to her dismissal, and Tess as notice of her having a disability is sufficient, has likely suffered disability discrimination because of a failure on the part of her employers to make reasonable adjustments.

BIBLIOGRAPHY

Books

A Practical Approach to Employment Law, John Bowers, Oxford, 2005.

Gwynneth Pitt, Employment Law, Sweet & Maxwell, 2004.

Mark Freedland, The Personal Contract of Employment, Oxford, 2003.

Articles

Mary Sutton, Stress at work: a costly problem, New Law Journal, 30 September 2005.

Jeffrey Jupp, Agency work: A black hole, New Law Journal, 30 September 2005.

Legislation

Disability Discrimination Act 1995.

Employment Rights Act 1996.

The Unfair Dismissal (Variation of Qualifying Period) and Statement of Reasons for Dismissal Order 1999 SI 1999/1436

Cases

Abadeh v British telecommunication plc [2001] ICR 156

Archibald v Fife Council [2004] IRLR 615

Cable and Wireless plc v Muscat UKEAT/0661/04/LA

Carmichael v National Power Plc [1999] I.C.R. 1226

Collins v National Theatre Board [2004] IRLR 395

Dacas v Brook Street Bureau (UK) Ltd [2004] EWCA CIV 217.

Ferguson v John Dawson & Partners (Contractors) Ltd [1976] 3 All E.R. 817

Goodwin v The Patent Office [1999] ICR 302

Greenwood v British Airways plc [1999] ICR 969

Iceland Frozen Foods v Jones [1983] I.C.R. 17.

Kenny v Chief Constable [1999] IRLR 76

Lanarkshire Primary Care NHS Trust v Naicker (EATS/0003/05)

Leonard v Southern Derbyshire Chamber of Commerce [2001] IRLR 19

Marks & Spencer v Williams-Ryan [2005] [2004] All ER (D) 73

Massey v Crown Life Insurance [1978] 1 WLR 676

Mid Staffs General Hospitals NHS Trusts v Cambridge [2003] IRLR 566

Motorola Ltd v Davidson and Melville Craig Group Ltd [2001] IRLR 4

Rainey v Greater Glasgow Health Board [1987] AC 224

Ready Mixed Concrete (South East) Ltd v Minister of Pensions & National Insurance [1968] 2 Q.B. 497

Royal National Lifeboat Institution v Bushaway [2005]

Taylor v Alidair Ltd [1978] I.R.L.R. 82

Other Written Sources

ACAS, Rights at work, Discipline, Grievance, and Dismissals.

Other Sources

http://www3.who.int/icd/vol1htm2003/fr-icd.htm

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