The curse of the were-employee?

Dear Auntie

Worried about were-wolves

Dear Worried

It sounds as though Mr Wolfe is suffering from a mental illness which may qualify as a disability under the Disability Discrimination Act 1995 (“DDA”). Under the DDA, a disability is a physical or mental impairment, which has a substantial (i.e. more than minor or trivial) and long term (i.e. lasts or is likely to last for more than 12 months) effect on a person’s ability to carry out normal day-to-day activities. In order for the physical or mental impairment to be substantial it must have effect on one or more of the following: concentration or memory, mobility, manual dexterity, physical co-ordination, continence, ability to lift, carry or otherwise move everyday objects, speech, hearing or eyesight and perception of the risk of physical danger.

Currently, a mental illness must be “clinically well recognised” in order for it to qualify under the DDA. Whilst lycanthropy is not of itself listed in the World Health Organisation’s Classification of Diseases, our research indicates that it is linked to schizophrenia – recognised as disease number F20. From 5 December 2005, the clinically well recognised requirement will be removed, and case law suggests that Tribunals are already classing certain mental impairments as disabilities, even if they are not clinically well recognised, provided that they have a substantial and long-term adverse effect on the employee’s ability to carry out normal day to day activities (Dunham v Ashford Windows).

Assuming that Mr Wolfe is disabled, he is protected from discrimination in a number of different ways:-

• Mr Wolfe has the right not to be treated less favourably purely on the grounds of his disability – this would amount to direct discrimination for which there is no defence. In other words, you can’t just dismiss him because he has this condition.

• He has the right not to be treated less favourably for a disability-related reason – this usually arises on the grounds of a symptom or consequence of the disability, such as Mr Wolfe being treated less favourably for having regularly to gnaw a bone. If you disciplined Mr Wolfe for gnawing bones in front of clients, this can potentially be justified on objective grounds as being unprofessional, so may well not amount to discrimination.

• Disabled workers are also entitled to request that you make reasonable adjustments if the physical features of the premises, or any provision, practice or criteria applied by you as his employer, places him at a substantial disadvantage in comparison with persons who are not disabled. This could arise if, for example, a particular shift pattern was introduced that Mr Wolfe could not comply with due to him having to hunt at night. If an adjustment is reasonable (having regard to resources, size of the employer etc), there can be no defence for failing to make it.

Damages for disability discrimination are not capped but would be calculated according to the losses which flow from the breach. An award for injury to feelings could also be made.

Practical steps

1. Act quickly by consulting with the employee (or his medical advisers, if he gives his express consent) in order to assist you in determining what adjustments can reasonably be made.

2. Consider introducing a shift pattern which best fits with Mr Wolfe’s nocturnal habits, rather than offering him unpaid leave in order to get medical help.

3. Ask Mr Wolfe for a copy of his medical report or a doctor’s certificate if he takes extended time off.

4. Don’t be afraid to discipline him (but not with a large stick!) if doctors conclude he can do his job properly, but he fails to do so.

5. Move the coat stand from near his desk – you don’t want him confusing it with a tree.