Progressive conditions

Case 3: The facts

Mr Kirton was suffering with cancer. He underwent an operation as a result of which he became incontinent. When he was subsequently dismissed he claimed that the incontinence was a disability and that he should have protection under the DDA. The EAT ruled against him (see Bargaining Report January 2003) and Kirton appealed.

The ruling

The Court of Appeal reversed the EAT ruling. It said that the DDA protected people with progressive conditions like cancer only from the stage where symptoms appeared. However, Kirton's incontinence was a result of the cancer even though it arose through surgery. This type of surgery was highly likely to lead to incontience and so it should be seen as a consequence of the progressive condition.

* Kirton v Tetrosly [2003] IRLR 353