19 September 2002

Commentary from Daniel Barnett

New EAT Decisions

The following cases have been placed on the EAT website in the last 24 hours. They are not yet officially reported, but may be appear in the law reports in due course.

Royal National Orthopaedic Hospital Trust v Howard

(HHJ Reid, EAT 23rd August 2002)

Mrs Howard brought an unfair dismissal and sex discrimination claim against the National Orthopaedic Hospital, which had employed her for 18 years. The claims were compromised in a COT3 agreement in 1998, which compromised "these proceedings and all claims which the Applicant has or may have against the Respondent."

Two years later, in 2000, she was asked by a surgeon to assist at an operation for one day but the hospital refused to authorise a temporary appointment - she said, because of her previous sex discrimination claim. She therefore brought a claim for victimisation.

The EAT upheld the employment tribunal's decision that the compromise agreement did not prevent her from bringing the later claim of victimisation. Although it was open to parties to contract away future causes of action which had not yet arisen, an objective construction of the words used in the COT3 did not lend itself to that interpretation. Accordingly she could proceed with the victimisation claim.

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Kirkton v Tetrosyl

(HHJ Reid, EAT 23rd August 2002)

No real legal principles, but an example of what does not amount to a 'disability'. Mr Kirkton suffered from mild incontinence: he wore one or two incontinence pads a day, had occasional urinary leakage and needed to go the toilet about eight times a day. The EAT upheld the tribunal's decision that this did not amount to a 'disability' within the meaning of the Disability Discrimination Act 1995. In reaching this conclusion, the EAT accepted that the tribunal had properly relied on the experience of two of the three people sitting on the tribunal who also suffered from incontinence and were in a position to judge the severity of Mr Kirkton's symptoms.

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Daniel Barnett

Daniel Barnett is a barrister at 2 Gray's Inn Square Chambers

www.danielbarnett.co.uk