Case law on disability discrimination

UKEAT/0051/15/LA

Issue: dismissal for long-term sickness absence

A Director of Learning in ICT at an academy school was assaulted by a pupil. The teacher felt unsafe and unsupported following her return to work and went off sick with numerous mental health issues, including post-traumatic stress disorder.

After more than a year’s absence, and there being no evidence that she would be able to return to work soon, the academy dismissed her for medical incapacity.

The teacher claimed discrimination arising from disability and unfair dismissal. The key issue was whether the school should have waited any longer for her to return.

The Court of Appeal agreed with the employment tribunal that the dismissal was unfair, and there was also discrimination arising from disability. The school should have 'waited a little longer’ given the evidence produced (including a fit note). The Academy failed to provide any evidence of the impact of her absence.

Implications for employers

The judgment in this case is not of huge comfort to employers because the claimant’s dismissal was unfair, even though she had been off sick for 17 months. Employers should proceed with caution whenever there is a question about an employee’s fitness to work. If an employee produces medical evidence suggesting the possibility of an imminent return to work, however vague, the employer should perhaps wait a further period of time in order to gather and consider any new evidence. But it is not expected to wait forever for an employee to recover from illness. Dismissal can be a valid step when an employee’s return to work is not imminent. The legal test is whether a reasonable employer would have waited longer before dismissing the employee.

A dismissal is fair provided it is for one of the five potentially fair reasons (including capability), so dismissing an employee whose return to work is not imminent may be valid. But employers also have to follow a fair procedure.

To lawfully dismiss an employee for ill-health, the employer should take steps to obtain proper medical advice, with the employee’s consent, to discover the prognosis. The employee must also be consulted and their views taken into account. The organisation has to decide how long it is reasonable to wait before dismissing an employee who has been absent long-term through sickness.

Medical evidence should be reviewed during the absence, including any new evidence which emerges during the dismissal process. To justify a dismissal, an employer should provide evidence of the impact of the employee’s prolonged absence on its business, and keep a written record of any disruption caused to the organisation as a result of the absence.

Unlawful discrimination occurs where workers are treated unfavourably because of something arising in consequence of their disability, and the employer’s treatment of them is not a proportionate means of achieving a legitimate aim. Some employees on long term sickness absence (but not all) will fall within the disability discrimination provisions. Employers must make reasonable adjustments for disabled employees, including those on long-term sickness absence, and may need to consider if the absence itself might have been avoided entirely if reasonable adjustments had been made.

(unreported, UKEAT/0266/15 7 April 2016, EAT)
Issue: failure to make reasonable adjustments

A high performing analyst with a brokerage firm worked long hours, regularly working 12 hours a day late into the evening. Following a serious accident he suffered from dizziness, fatigue and headaches and could no longer concentrate into the evenings.

For the first six months following the accident he worked no more than eight hours a day, but this increased until he was working from 8am until 6.30pm or 7pm. The employer once again assumed that the analyst would work late as a matter of course, and asked him which evenings he would be working late each week.

Eventually the analyst objected to his long hours, and following a dispute he resigned. He brought claims for constructive unfair dismissal and disability discrimination for the employer’s failure to make reasonable adjustments.

The Employment Appeal Tribunal held that the requirement to work late fell within the disability discrimination requirement of a ‘provision criterion or practice’ (a PCP), as this covered an expectation or assumption that an employee would work long hours. However, the appeal tribunal was not happy with the initial findings of fact and sent the case back to the tribunal to consider the effect of the disadvantage caused by the PCP, and what reasonable adjustments should have been made.

Implications for employers

• An employer must make reasonable adjustments where there is a ‘provision criterion or practice’ that puts a disabled employee at a substantial disadvantage compared to a non-disabled employee. An employer’s expectation that an employee will work long hours is a provision, criterion or practice for the purposes of a reasonable adjustments claim.
• Employers with employees with long term health difficulties may seek assistance from occupational health professionals who may consider adjustments to reduce late working. Employees who have a phased return to work following illness, or who have a disability, should be managed carefully to monitor how they feel about their long hours.
• Employees who work late regularly may have opted out of the working time regulations, but can opt back in at any time.
• Some employers may try and argue that they were unaware of a disability, or that there is no provision, criterion or practice when faced with a reasonable adjustments claim.

• Employers with a ‘long hours culture’ should be aware that this is not simply a working time issue, but may give rise to discrimination claims too.

​(unreported, UKEAT 0302/14 26 January 2015, EAT)
Issue: Defining disability

The claimant had type 2 diabetes which was controlled to some extent by diet such as avoiding sugary drinks. There was a dispute between him and his employer as to whether he was disabled under the Equality Act 2010.

The Employment Appeal Tribunal concluded that the claimant did not have a disability. The dietary control of his condition was not a 'treatment or correction'. In such cases of diet-controlled conditions the tribunal will consider how severely the condition affects the employee if they have ignored their special diet.

Implications for employers

• Employers should be wary of this decision as many cases of Type 1 and Type 2 diabetes will be a disability. However some cases may not.
• For diabetes to constitute a disability it will depend on the extent and effect on the employee in practice.
• A condition is a disability for the purposes of section 6(1) of the Equality Act 2010 if there is  a physical or mental impairment.
• The impairment must have a 'substantial and long-term adverse effect on their ability to carry out normal day-to-day activities'.
• When determining the substantial and long-term adverse effect the condition must be considered without any treatments or corrections being applied.
• Where a person has a potentially serious condition, employers need not automatically assume that they are disabled if the condition can be minimised by the person taking very simple steps.
• If the corrective steps are so minor that they cannot be considered a 'treatment or correction', then the condition may not amount to a disability.

(unreported, Case C-354/13 18 December 2014, ECJ)
Issue: Obesity and definition of disability

A Danish childminder weighing over 25 stone claimed that that he had beem dismissed by his local authority employer due to his obesity. A person with a BMI in excess of 40 is ranked as morbidly obese; the childminder’s BMI was 54. The employer said that the childminder was unable to perform his day to day duties, for example being unable to tie a child’s shoe-laces without a colleague’s help.

The ECJ followed the Advocate General’s (AG) opinion finding that that severe or morbid obesity can fall within the definition of disability under the Equal Treatment Directive (EU Directive 2000/78). The concept of ‘disability’ within the meaning of the Directive does not depend on the extent to which the person may or may not have contributed to the onset of his or her disability. It appears that  the obesity must hinder a worker from full participation in their professional life on an equal basis with others. The AG has said obesity might be a disability if:

• the consequences of the obesity (such as heart disease) make the job more difficult or demanding
• the resulting conditions are severe, for example, problems with mobility, endurance and mood - this may produce an impact which amounts to a disability but mere obesity on its own with no consequences is insufficient).

It is irrelevant whether the obesity was due to a metabolic problem or a psychological problem. The causes of disability are irrelevant.

This decision is essentially the same as the decision in the earlier UK case Walker v Sita Information Networking Computing Ltd (UKEAT/0097/12, 8 February 2013). This means that by dismissing the childminder the employer could be liable for disability discrimination.

Implications for employers

• Although there is no general principle of EU or UK law prohibiting discrimination expressly on grounds of obesity, any individual case of an obese employee can probably fall within both EU law and the Equality Act 2010 protections for disability.
• Employers will have to make all necessary reasonable adjustments to accommodate the special needs of severely obese employees.
• The Employment Appeal Tribunal ruled in Walker that obesity did not itself amount to disability in UK law, but the effect of associated problems such as heart disease, diabetes, depression and joint pain could mean that an obese person meets the definition of disability.
• As obesity is clearly a potential disability more employees will definitely be classed as disabled.
• Unfortunately, the ECJ did not go as far as the AG did by suggesting that a BMI of 40 may be the cut off point for obesity. Each employer will therefore have to  consider the extent to which the claimant’s weight hinders their effective participation in professional life on an equal basis with other workers and whether the limitation is a long-term one, in order to decide whether a particular employee is disabled because of their weight.
• Employers should have already considered their duty to make reasonable adjustments with respect to obese employees anyway. Such adjustments are required if employees have a physical or mental impairment that has a substantial, long term effect on their ability to carry out-day-to day activities.
• Employers should consider contractual terms or policies requiring health and fitness and cross reference these with equal opportunities and dignity at work.
• Employers may struggle to determine whether an employee is obese and what measures to take. However employers should be tactful and not make assumptions about the needs of an obese worker as not all obese employees have health problems.
• If obesity becomes an expressly defined 'disability' then obese employees would be automatically entitled to ask for reasonable adjustments under the Equality Act 2010 if any aspect of the job places them at a substantial disadvantage.
• Adjustments for obese employees could include reallocating duties to others or assisting them with lifting, carrying or other physical tasks such as tying children’s shoelaces.
• Employers who currently carry out risk assessments should make reasonable adjustments for obese employees if they have impairments affecting their abilities.

​(unreported, /EAT/008/14 22 July 2014, EAT)
Issue: Reasonable adjustments

A number of council employees were told that they were at risk of redundancy and were placed in a redeployment pool. All these employees would be interviewed for alternative positions if they confirmed their interest in those vacant positions. The claimant went off sick with a sleep disorder and depression. The Council’s Occupational Health Department said that he had a disability and as a result could not attend any administrative meetings including interviews. He was not responding to emails and had turned his mobile telephone off. Although the facts were complicated, ultimately he was dismissed. He appealed but whilst offering him the opportunity to express interest in available positions, the Council continued to refer to an interview as being an essential part of the process. His appeal was not upheld and the dismissal took effect. He claimed unfair dismissal and disability discrimination by way of failure to make reasonable adjustments and discrimination arising from disability.

The claim for unfair dismissal failed as the employment tribunal was satisfied that there was a redundancy situation which was handled properly. However the discrimination claim reached the Employment Appeal Tribunal which confirmed that there was a failure to make reasonable adjustments and discrimination arising from disability. The requirement to attend an interview was a 'practice' which put the claimant at a disadvantage. The Council was under a duty to make reasonable adjustments which could include sidestepping the requirement for a formal interview. The claimant should not have been subjected to a formal interview process, but his suitability should have been assessed by some other means. He would not automatically have been appointed to the role, but the interview requirement could have been dispensed with.

Implications for employers

• Employers have a duty to make reasonable adjustments where they are aware or should reasonably be aware that the employee has a disability.
• If a disabled employee is substantially disadvantaged by a redundancy and redeployment process then employers must be proactive about removing the disadvantages.
• The duty to make reasonable adjustments may include waiving the requirement for a formal interview if the employee’s disability prevents them from being able to attend interviews.

​(unreported, UKEAT/0372/13 15 May 2014, EAT)
Issue: Trigger points for disciplinary action in absence policies

An administrative officer at the Department for Work and Pensions (DWP) was absent 62 continuous days suffering from post-viral fatigue syndrome.

The DWP gave her a written improvement warning to comply with it's attendance policy. When the officer came back to work she brought a grievance about the written warning and said adjustments should have been made for her. The occupational health report said she had a disability in accordance with the Equality Act 2010. She said her 62 days’ absence should be disregarded as it was disability related and the written warning should be withdrawn. She also said that the usual attendance policy should not kick in for her until a larger number of days had passed.

The DWP could extend the number of days from eight days in a rolling 12 month period which normally triggered formal action, but in this case did not exercise their discretion to extend the number of days to 62 days.

The officer's grievance was not upheld and she left, bringing a tribunal claim alleging that the DWP had failed to make reasonable adjustments.

The Employment Appeal Tribunal (EAT) held that the duty to make reasonable adjustments did not arise. For the duty to arise there had to be a provision criteria or practice which placed the disabled employee at a substantial disadvantage when compared to non-disabled employees. The EAT said that the way the DWP had applied its attendance policy was not a disadvantage at all in this case. Extending the sickness absence period was not a reasonable adjustment.

The Court of Appeal will hear an appeal in February 2015.

Implications for employers

• Formal disciplinary or capability or attendance management procedures can be used in cases of long term sickness absence, even for disabled employees.
• Attendance management procedures should not discriminate against disabled employees because of matters arising from the disability. So applying a policy in a uniform way and ignoring sickness absence that arises from a disability is highly risky approach for employers to take.
• Employers should always apply processes to disabled employees very carefully indeed and should not automatically treat a disabled person’s absences in exactly the same way as a non-disabled person’s sickness absences.
• Employers should consider the reason for the absence and apply discretion about when to initiate formal action for disability-related absences.
• Some adjustments requested by disabled employees will be reasonable adjustments and some will not.
• An employer’s duty to make reasonable adjustments for a disabled person does not mean that the time periods of absence before commencing formal action in attendance policies should necessarily be extended for all disabled persons with higher levels of absence.
• Absence management procedures that involve trigger points may not be a substantial disadvantage to disabled workers so as to invoke the duty to make reasonable adjustments. However direct or indirect discrimination claims may still arise.

(unreported, [2014] EWCA Civ 763 13 May 2014, CA)
Issue: Non-disabled employee not protected by association with disabled person

A teacher employed by the Ministry of Defence (MOD) at an army school in Germany had a daughter with Down’s syndrome. The school apparently could not deal with children with disabilities so her daughter could not attend it with other army children. The teacher sought a transfer to the UK so that her daughter’s needs could be met but the MOD refused the transfer. She claimed under the Equality Act 2010 that the MOD had breached its obligation to make reasonable adjustments.

The issue was whether the duty to make reasonable adjustments just related to a disabled employee, or to a disabled person associated with the employee.

The Court of Appeal (CA) confirmed that under the Equality Act 2010 an employer need only make reasonable adjustments for an applicant for employment or an employee. The MOD therefore did not have to make reasonable adjustments for the daughter’s education.

Article 5 of the Equal Treatment Framework Directive also only applies to reasonable adjustments for disabled prospective employees or current employees. This could not be stretched to cover employees associated with a disabled person. Therefore the CA confirmed that reasonable adjustment provisions do not protect an able bodied employee who is associated with a disabled person. (However this case purely relates to reasonable adjustments and other claims may arise to protect non-disabled persons with caring responsibilities).

Implications for employers

• Employers should try to assist and support employees with ill or disabled family members as far as is reasonably possible.
• The Equality Act 2010 now expressly provides for associative discrimination as a cause of action for direct discrimination, victimisation and harassment in relation to protected characteristics including disability.
• All employers have a duty to make 'reasonable adjustments' where a disabled employee or prospective employee is put at a substantial disadvantage in comparison with people who are not disabled.
• This case shows that associative discrimination does not extend to the duty to make reasonable adjustments.
• The obligation to make reasonable adjustments does not therefore apply to employees who are not disabled themselves, but are associated with disabled people.
• An employee cannot bring a claim for failing to make reasonable adjustments where the employee is not disabled. However employers may still wish to consider whether or not to make such reasonable adjustments as a matter of good will.
• Employees with disabled caring responsibilities can make a request for flexible working and female employees may bring sex discrimination claims if they are the sole carer of a disabled child. Also claims for direct disability discrimination or harassment may arise.
• In Coleman v Attridge Law [2008] IRLR 722 the European Court of Justice also held that an employee who was not disabled, but was the principal carer for his disabled child, could bring a claim for direct discrimination or for harassment if the reason for the discriminatory treatment or the harassment was the disability of the child.

(unreported, [2013] EWCA Civ 1583 11 December 2013, CA)
Issue: Disability discrimination and 'without prejudice negotiations

This case covers two separate areas of law: disability discrimination and the impact of disclosure of ’without prejudice negotiations’ (see the 2012 case report Gallop v Newport City Council for the Employment Appeal Tribunal (EAT) decision on the impact of disclosure of ’without prejudice negotiations’).

The Court of Appeal (CA) decision addressed the disability discrimination aspects of the claim. The claimant was a former technical officer at the Council in the grounds maintenance department. He was supported in his discrimination claim by the Equality and Human Rights Commission.

The claimant suffered from depression triggered by work related stress. He was dismissed by the Council and won £60,000 compensation for unfair dismissal. He also claimed disability discrimination, including direct discrimination, disability-related discrimination and failure to make reasonable adjustments. A key issue was whether the Council knew he was disabled because the occupational health advisers had informed it that he did not meet the legal definition of disability. The claimant failed at the EAT who agreed with the Council that it did not have the necessary knowledge, actual or imputed, of the disability in order to form the basis of a discrimination claim. However the CA decided that the Council must look carefully at the nature of the particular impairment and decide for themselves whether an employee is disabled, rather than simply 'rubber stamping' the occupational health advisers' opinion. The case will now go back to the employment tribunal to decide whether the Council knew or should have known, that the claimant met the legal definition of disability and whether he was subject to disability discrimination.

Implications for employers

• An employer’s duty to make reasonable adjustments for disabled employees is only triggered if the employer knows, or should know, that the employee is disabled.
• Employers may seek assistance from occupational health officers and medical advisers in determining whether an employee has a disability.
• However, ultimately the factual judgement lies with the employer and it is employers who must make their own judgement as to whether an employee is disabled.
• Employers must ask occupational health officers and medical advisers specific practical questions to provide assistance in deciding whether an employee is disabled.
• Employers should ask questions aimed at determining if the:
  • employee has a physical impairment
  • employee has a mental impairment
  • impairment has a substantial adverse effect on the employee's ability to carry out normal day-to-day activities
  • substantial effect is long term (lasting or likely to last 12 months or more)
  • impairment is likely to recur
  • impairment may be masked by the effect of treatment.
• The relevant discrimination legislation in force applicable to this case was the Disability Discrimination Act 1995. However, the findings are also relevant to the disability provisions in what is now the Equality Act 2010.

(unreported, UKEAT/0194/12 15 April 2013, EAT)
Issue: Reasonable adjustments

A university librarian suffered from an allergic condition which fell within the legal definition of a disability. Following a reorganisation, her post disappeared and she applied for another post (which she had applied for on previous occasions before the restructuring). She was told that she would be given priority for the alternative post but she was required to undergo a competitive interview process. The University concluded that she would not be appointed as she had not demonstrated that she met the relevant criteria. The librarian alleged that the insistence on the competitive interview process was both disability discrimination and a failure to make reasonable adjustments. She alleged it would have been a reasonable adjustment to remove the interview requirement given her disability and lengthy absence from work. In a previous case (Archibald v Fife Council) the House of Lords decided that removing a competitive interview process might constitute a reasonable adjustment.

The Employment Appeal Tribunal held that the employer had not discriminated. Whilst there may be situations where competitive interviews should be waived it is not always necessary for employers to avoid such interviews. If the employer genuinely and reasonably considers that the employee does not meet the essential criteria for the job the employer does not always have to appoint that person.

Implications for employers

• Employers do not always realise that sometimes discrimination protection for employees requires the employer to appoint someone following a restructuring who is not the best candidate.
• In other words, disabled employees can be given priority over other candidates. Therefore, appointing employees with potential discrimination claims is complicated.
• The duty to make reasonable adjustments might require an employer to appoint a disabled employee even if that employee is not the best candidate. Indeed the Equality and Human Rights Commission says ‘transferring the disabled person to fill an existing vacancy is a possible reasonable adjustment for a disabled employee, even if the disabled employee is not the best candidate for the post'.
• Whether an adjustment is reasonable depends on the circumstances of each particular case.
• The duty to make reasonable adjustments might require an employer to change selection procedures.
• There may be circumstances where employers should waive the requirement to attend an interview.
• When it comes to an actual appointment, employers can insist that at least the essential requirements for the new role are met. An employer is not expected to ignore essential requirements for the job.
• If an employer genuinely and reasonably thinks that an employee does not meet the essential criteria for a job the employer may be able to appoint another person.

(unreported, UKEAT/0097/12/0802 8 February 2013, EAT)
Issue: Whether obesity can be a disability

Mr Walker worked for a computer company. He was 137kgs (21.5 stone). He was obese. Medical evidence suggested that the additional weight which he carried was around 18 x 5lb bags of sand.

As a result he suffered from various conditions including asthma, chronic fatigue syndrome, knee problems, diabetes, bowel and stomach problems and depression. He had poor concentration and significant difficulty in his day-to-day life.

Was he disabled for the purposes of the Disability Discrimination Act 1995 (now contained in the Equality Act 2010), as obesity is not necessarily a disability?

The EAT found that Mr Walker was, and had been for a long time, both physically and mentally impaired and also found that for the purposes of the legislation he was disabled.

Implications for employers

• As the definition of disability under the Equality Act 2010 is essentially the same as under the previous legislation, this decision is relevant to current disability discrimination claims.
• Twenty six per cent of the UK’s adult population is obese, so obesity-related issues are an increasing problem in the workplace; employers may come across similar problems.
• Employers with obese employees who suffer certain ailments should consider the possibility that they are disabled.
• Employers with obese employees should remember that obesity is not a disability in itself, but many symptoms may make it more likely that the employee is disabled.
• While obesity alone is not a disability, obese employees who suffer from physical or mental impairments (which have a substantial and long-term effect on the employee’s ability to carry out normal day-to-day activities) are the ones who may be disabled.
• Obese employees may be protected from disability discrimination and harassment and entitled to reasonable adjustments.
• Obesity may more easily result in the finding of impairment than some other medical conditions.
• If an employee claims to be disabled, but there is no recognised cause of that disability, the employer and ultimately a tribunal will have to decide if the individual does or does not genuinely suffer from the disability.
• An employer should not focus on the underlying cause of the impairment (e.g. obesity), but on whether there is actually an impairment.
• Employers should not assume that all obese employees are disabled as this may cause offence and lead to a breakdown in the employment relationship.
• Weight loss may take a previously disabled employee outside the definition of disability.
• Assuming someone is obese and treating them differently may provoke a claim of disability discrimination by perception.
• Employers should proactively encourage a healthier workforce.

​(unreported, UKEAT/0586/10 19 July 2012, EAT)
Issue: The impact of disclosure of ’without prejudice negotiations’

An employee was dismissed for gross misconduct after failed negotiations attempting to reach a compromise agreement. The negotiations were on the usual 'without prejudice' basis. He then claimed unfair dismissal and disability discrimination. At the employment tribunal hearing a witness disclosed the failed departure negotiations. The employee won the claim for unfair dismissal; the tribunal then went on to decide that the compensation would be reduced by 50 per cent. This was because if the employee had not been dismissed then there was a 50 per cent chance that the employee would have taken the compromise agreement that was originally offered to him. The Employment Appeal Tribunal held that the tribunal should have completely ignored the evidence relating to the 'without prejudice' discussions, unless both parties had clearly waived their respective rights to the 'without prejudice' nature of the negotiations.

Implications for employers

• If negotiations are taking place with a view to settling an employment dispute the negotiations should be on a 'without prejudice' basis.
• This means the settlement offers etc cannot later be admitted in evidence before the employment tribunal without the consent of both parties concerned.
• For negotiations to be 'without prejudice' there must be a bona fide intention to settle the dispute.
• If a witness reveals details of without prejudice negotiations in a tribunal hearing these should not be taken into account, unless the parties have clearly waived their rights to the discussions remaining 'without prejudice'.
• The Government is changing the legislation concerning termination of employment - employers will be able to have settlement discussions or negotiations with an employee regarding termination more easily.
• Under the changes employers can offer settlement agreements before a formal dispute arises and still be protected from those discussions being used as evidence in an employment tribunal unfair dismissal case.

​(unreported, ET/1604478/11 and ET/1600000/12 8 May 2012, ET)
Issue: Mental impairment

A cashier for Iceland foods had a mental impairment which caused her to suffer panic attacks. This satisfied the legal definition of disability. She was dismissed for unauthorised absence as her sick notes had not been received by the appropriate manager. She appealed the dismissal. Her line manager and the HR manager telephoned her and left a message on her answer phone explaining she could not bring her husband to the appeal hearing. While the answer phone was still recording (unbeknown to them) they went on to swear and laugh about the situation stating that she would have a panic attack and that will be the end of that. The employer upheld her appeal and offered her a transfer to another store, but the complaint about the voicemail recording issue was not addressed and she resigned.

She claimed constructive unfair dismissal, disability harassment and failure to make reasonable adjustments in relation to being accompanied at the appeal hearing. She won compensation of over £7,000 most of which was for injury to feelings. The employment tribunal also recommended that all members of the HR department and all line managers be trained on disability discrimination – especially mental health issues

Implications for employers

• Employers should keep all employees informed and trained on the Equality Act 2010 and equal opportunities and keep policies in line current legislation.
• An equal opportunities policy helps employers:
  • remain aware of the different forms that discrimination can take
  • maintain the confidence and the knowledge to tackle discrimination
  • establish the discrimination defence that the employer took all reasonable steps to prevent the discrimination occurring.
• It is insufficient for employers just to have an equal opportunities policy; they need to be able to prove that managers were trained in what that policy means.
• Employees (and indeed workers) have a right to be accompanied by a trade union representative or a colleague at meetings where a formal warning may be issued, or some other disciplinary action could occur.
• The right to be accompanied does not apply to informal discussions or investigatory meetings, although an employer may choose to grant an employee's request to be accompanied at any meeting.
• An employee may be accompanied by a member of their family if the employer agrees. Employers may specify in the organisation’s disciplinary or grievance procedure that the employee may be accompanied by a partner, spouse or legal representative.
• In cases involving a disability it may be a reasonable adjustment to allow a disabled person to be accompanied at a disciplinary hearing by someone other than a work colleague or union representative, for example a husband, wife, friend or other family member.
• This is a rare example of an employment tribunal recommending that employers take steps to rectify the problems in the workplace such as equal opportunities training.
• Employment tribunals’ power to make recommendations is seen by the Government as an unnecessary burden on employers and will probably be removed, following the consultation which closed in August 2012. However, the changes are unlikely to have much impact for many employers in practice.
• Historically, recommendations could only be made if they addressed discrimination against the employee who brought the claim. However, since the Equality Act 2010 came into force, employment tribunals can make recommendations for the wider workforce and not just the employee.
• It is a positive step for some employers that recommendations such as those made in this case will no longer be made. For an employer who has lost in the tribunal, recommendations can represent additional costs and adverse publicity of a discrimination claim. However only between 0 and 17 employers a year have been given wider recommendations anyway.

([2011] EWCA Civ 648 27 May 2011, CA)
Disability discrimination - bonuses

An executive director in a hedge fund credit sales team suffered a serious back injury following a skiing accident. After a stay in hospital he had to work from home with reduced mobility, ability to travel and working hours. These circumstances prevented him from widening his client base and he received a much lower bonus than he did in the previous year. He was made redundant and claimed that the lower bonus and redundancy amounted to unfair dismissal, age discrimination, direct disability discrimination and disability-related discrimination.

An employment tribunal, applying Mayor and Burgesses of the London Borough of Lewisham v Malcolm [2008] IRLR 700, HL), held that the claimant had not suffered disability-related discrimination or age discrimination. However the tribunal initially upheld the direct disability discrimination and unfair dismissal claims.

The employer appealed to the Employment Appeals Tribunal (EAT) and then to the Court of Appeal (CA).

The EAT and CA observed that:

• the reasons for the amount of bonus and the dismissal were found by the employment tribunal to be for reasons relating to the claimant’s disability, and
• a non-disabled person would have been treated the same way.

Therefore the claims for direct disability discrimination could not succeed. Another person in the claimant’s position who was not disabled and was suffering the same restrictions relating to ability to travel and entertaining clients would also have been paid a lower bonus and selected for redundancy.

The Court of Appeal therefore ruled that once it was decided that a comparator would have been treated in the same way, then there has been no ‘less favourable treatment’ and therefore no direct discrimination.

Implications for employers

• Employers should check all bonus schemes to see if those who get a lower bonus (for example due to being unable to work long hours) as a result of a disability may be discriminated against.

• Employers may be able to defend such claims if they can show the bonus scheme and the treatment resulting from it is justified. However it is far better to avoid trying to justify any such scheme, as not all discrimination is capable of justification.

• Where an allegation of the ‘old’ concept of disability-related discrimination is made, if that claim fails because the comparator would have been treated in a similar way, then a direct discrimination claim will also probably fail on the basis there has been no less favourable treatment.

• Following provisions in the Equality Act 2010, employees like the claimant will find it easier to bring successful disability discrimination claims anyway.

• Disability-related discrimination claims had become easier for employers to defend following the Malcolm decision, but under the Act the new concept of arising from a disability is easier to prove because no comparator is necessary. (This type of discrimination happens when an employer treats a person unfavourably because of something arising as a consequence of the disability as in this case).

• The position in relation to discrimination arising under a disability under section 15 of the Act has effectively returned to the position before the Malcolm decision, so this judgment will only apply to claims for disability related discrimination and direct disability discrimination under the Disability Discrimination Act 1995 (DDA).

• Employers may be able to defend such disability claims anyway if they can show the treatment was justified.

• Under the DDA if a court or tribunal decides in relation to disability related discrimination that an employer would have treated a non-disabled person the same way then this is inconsistent with a finding that the treatment in question amounted to direct disability discrimination.

(UKEAT/0435/09, 26 July 2010)
Issue: Reasonable adjustments

An employee damaged her right arm in an accident at work leaving her with problems such as difficulties in using a computer. After an occupational health assessment recommendations were made, but these were not followed or not implemented properly. The employee claimed disability discrimination by failure to make reasonable adjustments under the old Disability Discrimination Act 1995. However, it still provides useful guidance on the disability provisions under the Equality Act 2010.

The employer said the tribunal and the employee could not identify any disadvantage the employee had in performing her duties, so could not properly analyse which steps would have been reasonable. The Employment Appeal Tribunal followed Environment Agency v Rowan, in that to rule on whether an employer is liable for failure to make reasonable adjustments the tribunal must decide:

• the provision, criterion or practice applied by the employer (and/or the physical feature of the premises occupied by the employer)
• the identity of non-disabled comparators
• the nature and extent of the substantial disadvantage suffered by the claimant
• how the proposed adjustments would alleviate the disadvantage in question.

Following these guidelines the Employment Appeal Tribunal said a tribunal should rehear the matter as the first hearing had taken a ‘broad brush’ approach. The rehearing should consider the detail of the employee’s job and if she was placed at a substantial disadvantage due to her disability.

Implications for employers

• Employers may be able to defeat reasonable adjustment claims if they can show evidence on the stages referred to in the bullet points listed above.
• Employers should usually follow occupational health assessment recommendations and implement these properly.
• However if an employer does not follow these recommendations, it may in rare cases be possible to argue that just relying on the health assessments isn’t what is required.
• Instead employers may be able to look at the legal duty to make reasonable adjustments rather than assuming the health assessment properly reflects what is reasonable.

​[2010] IRLR 994, CA
Issue: Making reasonable adjustments and comparators

This was a claim for direct disability discrimination and failure to make reasonable adjustments by an employee with the mental health disability of bipolar disorder. There was a complex sequence of events involving complaints against colleagues (including bullying), periods of paid leave, sick leave for stress-related chest pain and a heated discussion with his line manager. At one stage there was a suspension and proposed disciplinary hearing which was withdrawn when the employee was admitted to hospital for his mental illness. After several months of absence, the employee was dismissed on the grounds of health related incapability. The key issue in the case concerned the proper comparator to use in following the leading decision on this, London Borough of Lewisham v Malcolm [2008] UKHL 43.

The Court of Appeal held that the employee won on direct discrimination, but failed on disability-related discrimination. On the direct discrimination claim the appropriate comparator was someone who had been off for a similar number of days, but did not have the claimant’s disability. The key question was 'did the claimant on the grounds of disability receive less favourable treatment than others?'. Here the mental disability was the ground of his dismissal as the Council’s reactions showed a stereotypical view towards the mental illness. However with regard to the claim for disability-related discrimination the Malcolm decision does apply in employment cases. Here the appropriate comparator on the disability related claim was the same as for direct discrimination

Implications for employers

• The Equality Act 2010 created a new claim of 'discrimination arising from disability'. This does not require comparators and so avoids the need for the Malcolm chain of case law.
• Employers must not treat a disabled employee in a detrimental way because of their disability.
• If employers do treat a disabled employee in a detrimental way because of their disability, there may be a chance of objectively justifying the treatment under the Equality Act 2010.
• Cases in the future will focus on whether the detrimental treatment is linked to the disability.
• For older cases still falling under under previous legislation, the Malcolm case makes claims of disability related discrimination easier for employers to defend and very difficult for employees to win.
• For older cases still falling under previous legislation, lawyers representing employees are more likely to focus on failure to make reasonable adjustments where possible.
• Employers should be aware that dismissals can count as a breach of the reasonable adjustment duty.

​[2010] IRLR 744, EAT)
Reasonable adjustments

A police constable was diagnosed with chronic anxiety syndrome and moved to a role which involved no face-to-face contact with members of the public. However, this role increasingly required the ability to deal directly with members of the public and after an assessment it was advised that the constable ‘would struggle’ with this role change. He was retired with an ill-health pension. He brought a disability discrimination claim against the Chief Constable for failing to make reasonable adjustments.

The Employment Appeal Tribunal, upholding most elements of the employment tribunal decision, held that the Chief Constable was under a duty to make reasonable adjustments and this could have meant swapping the claimant’s job with a non-public facing job carried out by another constable. However, swapping a disabled employee’s job with another employee’s job would not be a reasonable adjustment in all cases.

Implications for employers

• Employers must have clear and current equal opportunities policy which covers all forms of disability.
• Employers should always consider the duty to make reasonable adjustments which may include the possibility of swapping employee roles.
• In some cases it may be a reasonable adjustment to move a disabled employee to a job that is not vacant.
• The duty to make reasonable adjustments can include transferring a disabled employee without the need for internal job interviews.
• In some cases swapping roles will not be appropriate, but it should at least be considered.
• If a suitable role can be identified, the employer should consult with the employees concerned.