Disability and employment
Explore the UK legal position on disability discrimination and the importance of making reasonable adjustments for disabled employees
Selected cases on disability discrimination in the workplace
Here we list a selection of key cases on disability discrimination in the workplace, providing a summary of the decision and implications for employers.
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[2018] EWCA Civ 1105
Issue: Disability discrimination – knowledge of consequences of disability
The Head of English at a secondary school in York had cystic fibrosis. He had made significant improvements to the English department but had a reasonable adjustment agreement enabling him to manage his condition, including a time-consuming exercise programme. A new head teacher introduced new performance standards and did not know about the claimant’s reasonable adjustment agreement. As a result of changes, including a new syllabus, the claimant’s workload increased significantly and he became increasingly stressed. He complained but no effective steps were taken.
His lung function deteriorated, and he feared he might need a double lung transplant. Eventually he was signed off as unfit for work. Just before this, he had shown an over-18 film (‘Halloween’) to a class of vulnerable 15 and 16-year-olds, without telling the school or getting parental consent. After the teacher had been signed off sick, the film showing was discovered, which triggered a formal disciplinary investigation.
The teacher agreed the film had been inappropriate but said he had been affected by stress, a side effect of his disability. The employer had medical evidence that the teacher’s disability was not a relevant factor and did not accept there had simply been an error of judgment caused by stress, and that his cystic fibrosis had contributed to the stress. The employer alleged he failed to appreciate the seriousness of the matter and showed no remorse. He was summarily dismissed, and his appeal against dismissal was rejected.
He claimed unfair dismissal and discrimination arising from disability under the Equality Act 2010.The key issue was whether an employer needed knowledge of the consequences of a disability to be liable for disability discrimination.
The teacher lost his unfair dismissal claim because his misconduct was serious and, based on the information available to the school, dismissal was within the range of reasonable responses.
However, the teacher won his discrimination claim. The CA confirmed that his dismissal was not proportionate, and the employer was guilty of unlawful discrimination arising from disability. The stress he was under did result in an impaired mental state, which in turn led to his error of judgement in showing the film. The tribunal could rely on medical evidence which had not been available to the employer’s disciplinary or appeal panels. The further medical evidence showed a link between the teacher’s disability and his misconduct.
The school had not known that the misconduct arose from the claimant’s disability, but knowledge was not needed. The dismissal was a disproportionate response and the fact that the employer did not intend to discriminate was irrelevant. The teacher had been treated unfavourably because of something arising from his disability. The employer was correctly concerned about the safeguarding of children, which was a clear and legitimate aim to justify dismissal, but the dismissal was still not proportionate.
This case was the first time the Court of Appeal looked at the proper interpretation of discrimination which arises from a disability. The case is a helpful reminder of the proper approach to this type of discrimination.
An employer:
The Equalities and Human Rights Commission statutory Code of Practice should be taken into account by employers. In deciding whether dismissals are disproportionate, tribunals may take into account any reasonable adjustments employers should have put in place. In practice, if there has been a failure to make a reasonable adjustment, that will be take into account when considering a justification defence.
Generally, employers will have a defence if they did not know, and could not reasonably have been expected to know, that the employee had a disability. However, if an employer treats an employee unfavourably because of something arising from a disability, the employer does not have to be aware that the condition came from the disability.
The tribunal will assess objectively if whatever happened arose from the disability and may consider extra evidence which was not available to the employer.
Once there has been unfavourable treatment, the tribunal will decide what caused it. If the reason which was in the employer’s mind was something arising in consequence of a disability, then there will be a valid claim.
[2018] UKEAT/0230/17
Issue: Disability discrimination - sick pay
An employer had a sickness absence policy which kicked in when absences reached certain trigger points over a 12-month period.
One of the customer support employees (who was disabled) had absences that exceeded the trigger points. The employer gave assurances that no further action would be taken unless absence levels increased, but then it would consider taking action under the policy, such as written disciplinary warnings.
When the employee’s absences totalled 60 days (six times over the trigger point) the employer gave a written warning which would be current for 12 months. The employee’s contractual sick pay was suspended.
The employee made a claim for discrimination arising from a disability, and failure to make reasonable adjustments. The employer accepted that all except one of the 60 absences were disability-related and genuine. However it said that the warning was justified to ensure adequate attendance levels.
The EAT said that the employer’s decision to issue a warning and to stop paying company sick pay was discrimination arising from disability. The employee had been treated unfavourably in consequence of her disability and the employer had failed to show that treatment was a proportionate means of achieving a legitimate aim. The employer had failed to objectively justify its warning and pay suspension.
It was not clear that the warning would improve attendance or that the sanctions were proportionate.
The employer should have:
Occupational health or medical advice may have indicated an adjusted role, or could have improved attendance levels. The missing evidence meant the employer could not show that the warning was a proportionate way to ensure adequate attendance levels. Instead, the employer relied on generalisations in its unsatisfactory attempts to justify the warning.
Employers who are managing any disabled or able-bodied employee’s absence should consider their legitimate aim and if their actions are proportionate. Disability-related discrimination occurs when an employer discriminates against a disabled person by treating them unfavourably because of something arising in consequence of their disability, and the employer can’t show that the treatment is a proportionate means of achieving a legitimate aim.
The Equality and Human Rights Commission Employment Code says that the employer must justify the treatment. “They must produce evidence to support their assertion that it is justified and not rely on mere generalisations”.
Managing disabled employee’s attendance is difficult if the impact of the disability on the absences is not fully considered.
If an absence policy has trigger points which are adjusted for disabled employees, then:
Employers should also:
[2007]S/4104575
Issue: Disability discrimination-menopause
A court officer with an unblemished employment record for 20 years experienced 2 to 3 years of menopausal symptoms. The symptoms included very heavy bleeding or flooding resulting in anaemia, feeling “fuzzy”, emotional and lacking in concentration at times. At a menopause clinic she was given hormone replacement therapy, which helped a little although the symptoms persisted.
The employee informed her line manager of her symptoms leading to agreement she would no longer do jury court. On weeks when her bleeding was very severe (and she required to change sanitary protection twice an hour) she needed to work in a Court where there was easy access to a toilet as she needed to take toilet breaks during proceedings.
The claimant was also prescribed Cystopurin for cystitis, this medication comes in a granular form to be diluted in water during the course of the day. Matters came to a head when the officer left the court for a few minutes, and on return noticed that the jug of water on her desk had been drunk and her pencil case containing sanitary products had been moved. She saw two men who were involved in the court case drinking her water and warned them that her medication was dissolved in it. One of the men became verbally abusive and the officer raised her voice in response.
At the end of the day, the employer asked her to provide a written account of what had happened, followed by a later health and safety meeting. The health and safety investigations showed the medicine had not been added to the water, as the water would have turned a noticeable pink colour. The report also questioned the veracity of the employee’s account because she would have known that the medicine was not dissolved in the jug as the water was colourless.As the officer had allegedly brought the court into disrepute she was invited to a disciplinary hearing, with a view to assess if gross misconduct had been committed. One of the litigants who thought they had drunk the medicated water had appealed his case, blaming the officer for causing him anxiety, such that he lost his concentration.
A union representative pointed out the officer had not been accompanied to the first health and safety meeting or been given the health and safety investigation report when it was first produced. At the disciplinary hearing, the employee explained that she genuinely had not realised her mistake as her condition made her flustered and forgetful so that she could not remember if she had dissolved the medication or not.
Despite her 20 years’ service, the officer was dismissed for gross misconduct for misleading both the litigants (who drank the water) and the employer. The chair of the disciplinary hearing said the officer would have known the medication was not added to the water and that her symptoms of forgetfulness only started after the health and safety interview.
After an unsuccessful disciplinary appeal, she was dismissed. She was then prescribed anti-depressants, unable to find other work and brought unfair dismissal and disability discrimination claims.
The officer was found to have been unfairly dismissed and reinstated to her job with back pay and injury to feelings compensation. The key issue on the unfair dismissal claim was if the employer’s decision to dismiss was in the range of reasonable responses in response to the repeated lie about ingesting medication.
The key issue on disability discrimination under the Equality Act 2010 was whether the menopausal symptoms counted as a disability.
Unfair dismissal: The Tribunal decided that while the employer believed the employee was guilty of the alleged misconduct surrounding the lie, there were no reasonable grounds for their belief as they could not provide an answer as to why she would have lied. In addition, the employer’s investigation was flawed because they had failed to disclose the health and safety report to her in a timely fashion and the investigations lacked balance. The Tribunal decided the decision to dismiss the employee was not within the band of reasonable responses either. The health and safety report was not shown to the officer. The investigation report was not balanced as it ignored the officer’s explanation and the medical information. Both the investigation and report addressed matters outside their remit and this all meant the subsequent disciplinary process was not fair.
Disability discrimination: The unfavourable treatment in this case was the dismissal of the officer, which was triggered by her conduct. The menopausal symptoms affected day to day living and performance at work as the symptoms involved anxiety and upset; short term memory loss and confusion. The employee’s conduct was affected by her disability as the menopause caused her to be confused and forgetful about whether she had taken her medication and whether she had put it in the water jug. The Tribunal said there was a clear causal link between the Claimant’s disability and her conduct.
Employer’s defence and compensation: The employer said it needed to have an honest and trustworthy staff; and that dismissal of the officer was a proportionate means of achieving this aim. Whilst having an honest and trustworthy staff was a legitimate aim, dismissal of the officer was not proportionate. They could have considered alternatives such as a verbal or written warning. This could have achieved the same aim but would not have had the same discriminatory effect. The Tribunal awarded over £14,000 for loss of earnings and a further £5,000 for injury to feelings. Unusually there was also an order that she be reinstated to the position of officer to the Tribunal service.
This case although only tribunal level, provides many lessons for employers. Importantly it shows that employers need to exercise much caution when dismissing employees with menopausal symptoms. Employers should remember that discrimination compensation is uncapped so claims can be expensive.
Employers have been slow to recognise that women of menopausal age may need special treatment as it is seen as a slightly embarrassing private matter. Whilst employees may choose to keep the matter private, employers should be alert to issues. This case shows that:
Employers should always act reasonably. In order to dismiss fairly there are two stages: first, the employer must have an acceptable reason for the dismissal, for example, misconduct or incapability. Secondly, the employer must act reasonably in dismissing the employee. Employers should ensure they take the following into account:
UKEAT/0260/16/BA
Issue: Disability discrimination – perceived disability
A police officer requested a transfer from the Wiltshire to the Norfolk police force. At the medical, she showed signs of tinnitus and hearing loss and, therefore, fell just short of police recruitment criteria. The criteria were not binding, as each candidate’s ability should have been considered individually and this constable had successfully worked in a police force already.
The Norfolk Constabulary refused her application to transfer, based on concerns she may not be a fully operational officer and may need restricted duties, which would have an impact on the force’s financial constraints.
The Employment Appeal Tribunal held there was direct discrimination contrary to the Equality Act. The employee did not need to show she actually had a disability, because she was treated less favourably because of a perceived disability. The police chief inspector perceived the officer might have to go on restricted duties in future, but she would not have to do this if she passed the operational test, which she may have done. There was medical evidence that her hearing levels were stable anyway.
This case is important, as it is one of the first EAT cases to be based on perceived disability. Whether there is discrimination depends on whether the employer perceived the employee to have an impairment which falls within the Equality Act definition of 'disability'.
Impairments must have a substantial effect on normal day-to-day activities but with progressive conditions the impairment may not be obvious.
It is enough for a claim if the impairment is not seen to currently have a substantial adverse effect but the perception is that it could well have a substantial effect in future.
An employee with a progressive condition which has some effect on their ability to carry out normal day-to-day activities may be covered, even if the condition is not substantial as yet. What is important is if there is likely to be a substantial effect in the future.
Claims for perceived disability are not likely to apply to reasonable adjustment claims or discrimination arising from disability.
An employee has to be treated as disabled if an impairment, which does not presently give rise to a substantial adverse effect, could well or may do so. If perceived impairments are not covered, then employers could just dismiss in advance to avoid duties to make adjustments before the impairment progressed to the point where it affected the employee’s work.
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.
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.
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.
UKEAT/0318/15/DM
Issue: Disability discrimination - misconduct
A paraplegic local authority employee lost his temper because the employer had moved a workshop session from an external venue, which had wheelchair access, to a Council basement which did not. The employee shouted and used racially offensive language in front of a mixed-race colleague during two separate outbursts.
The colleague complained, as she believed the comments were aimed at her. The employee was suspended and eventually dismissed for gross misconduct based on using the racist language. He appealed that summary dismissal was too severe a sanction, but he lost the appeal, so was dismissed. He claimed discrimination arising from a disability.
The EAT held that there only needs to be a faint connection between an employee's disability and their conduct to establish discrimination arising from disability. If any loose connection is shown, then the legal burden is on the employer to justify its treatment.
The employee had shown his conduct arose because of his disability. If he had not been disabled, he would not have been angered by the change of venue. The act of complaining had led to dismissal, so this was linked to his disability and was potentially discriminatory.
The EAT has remitted the case back to the employment tribunal to reconsider if the decision to dismiss was justifiable as a proportionate means of achieving a legitimate aim.
Discrimination arising from a disability occurs when an employee is treated unfavourably because of something arising in consequence of their disability. The employer then has to justify what it did and show the treatment was a proportionate means of achieving a legitimate aim.
If disabled employees face misconduct charges and say there is a link to their disability, the employer can ask them to provide supporting medical evidence. Before imposing a sanction, employers must consider:
For example, is dismissal necessary or would a less drastic sanction, such as a warning, be sufficient?
It is quite straightforward for an employee to demonstrate a connection between their disability and any misconduct. Employers must be very cautious if an employee’s misconduct arises from a situation which could be connected to a disability.
(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.
(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:
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.
(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.
(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.
(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).
(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.
(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.
(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.
(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.
(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
([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:
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.
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:
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.
[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
[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.
Please note: While every care has been taken in compiling these notes, CIPD cannot be held responsible for any errors or omissions. These notes are not intended to be a substitute for specific legal advice.
Explore the UK legal position on disability discrimination and the importance of making reasonable adjustments for disabled employees
Commonly asked questions on the legal issues relating to disability discrimination in the workplace
Guidance on preventing disability discrimination in the workplace
The CIPD is a Disability Confident Leader. We work with the DWP and lead the way in changing attitudes towards disability, and to encourage all employers to provide opportunities to ensure that people with disabilities and those with long-term health conditions are able to fulfil their potential at work. We regularly review our own people practices and approaches to ensure that our workplace is as open, diverse, accessible and inclusive as possible.