Overview

COVID-19: ONS figures for March 2021 showed that over a million people in the UK reported having long Covid after becoming ill with COVID-19. It is possible that an employee with poor health following their initial recovery from COVID-19 may qualify for disability discrimination protection at work if their symptoms are consistent with the statutory definition of disability. For more on this issue see Q Are recurring, varying or managed conditions 'disabilities'?

The main piece of legislation governing disability discrimination in Great Britain is the Equality Act 2010.

Discrimination claims may be made in an employment tribunal within three months from the date of the last discriminatory act. The Equality Act also allows for claims to be made three months after the last in a series of continuing acts. This may be quite relevant to this area of discrimination law for example where an employee complains that the employer is continuing to discriminate by not addressing their duty to make reasonable adjustment. The tribunal may consider a complaint outside that time limit if it considers it just and equitable to do so. Before making discrimination claims, Acas early conciliation must normally be attempted and this also extends the time limits for claims. Claims can be made by job applicants, current employees or ex-employees.

The Act is supplemented by a statutory Code of Practice on the employment aspects of the legislation, which employment tribunals take into account, and non-statutory guidance. . This is a useful document in terms of giving guidance for example as to what counts as a disabled employee or what would be a reasonable adjustment in a given situation.

The Equality and Human Rights Commission (EHRC) website also has a wide range of information on discrimination law, including disability discrimination.

Information on disability discrimination in Northern Ireland is available on the Equality Commission for Northern Ireland website.

These Q&As focus on the employment relationship and the duties owed by employers towards employees. However, disability discrimination protection extends far beyond the employment relationship and includes, for example, the provision of goods and services.

As with other 'protected characteristics' under the Equality Act, it is unlawful to discriminate against a disabled person during the recruitment process including, except in certain circumstances, asking about a candidate’s health, or requesting they fill in a pre-employment health questionnaire, prior to making them a job offer. (For more information see our Recruitment and Selection Q&As.)

These Q&As should be read in conjunction with our Case law on disability discrimination.

Disability is a protected characteristic under the Equality Act 2010, and is defined as a physical or mental impairment that has a substantial long-term, adverse effect on the ability to carry out normal day-to-day activities. 

‘Substantial’ here means more than minor or trivial.

Who’s covered?

The question of who is disabled encompasses a broad category of people. The Act protects anyone who has, or had, a disability. For example, an employee who has suffered from depression in the past and is likely to have further relapses and because of this, is harassed at work, would meets the Act's definition of disability and would be unlawful.

The protection includes people who are discriminated against because of a disability they do not personally have. For example, an employee treated less favourably because his wife has motor neurone disease would be able to claim associative discrimination on the grounds of disability, and that would be unlawful as well.

In Price v Action-Tec Services Ltd trading as Associated Telecom Solutions (2011), a non-disabled employee suffered associative direct disability discrimination when she required time off because her husband had leukaemia.

Guidance

The Equality and Human Rights Commission guidance explains what needs to be taken into account when deciding questions relating to the definition of disability. The guidance does not impose any legal obligations in itself, nor is it an authoritative statement of the law. However, a court or tribunal determining whether a person is disabled may take into account any aspect of the guidance it considers relevant.

Employers must remember that depression, extreme stress and other forms of mental illness form the basis of increasing numbers of disability discrimination claims.

In order to be protected, a condition must fall within the definition of disability in the Equality Act 2010. There is no list of medical conditions which qualify but each individual must be assessed by reference to the definition in the Act set out above.  Case law has then clarified a number of conditions that have been regarded as being protected (as long as the adverse effect is substantial) and some examples are:-

  • long -term medical conditions such as asthma and diabetes, and
  • fluctuating or progressive conditions such as rheumatoid arthritis or motor neurone disease.

Other conditions that have been held by the courts to constitute a disability include agoraphobia, allergies, chronic fatigue syndrome, schizophrenia, rheumatoid arthritis, diabetes, epilepsy, visual impairments, impaired hearing and dyslexia. People with severe disfigurement will also be protected. These are simply examples and many more categories may be included. 

Furthermore, some conditions, including cancer, multiple sclerosis and HIV/AIDS, are expressly protected, and people that have these conditions are considered to be disabled from the point of diagnosis. This means that a person with the HIV virus is protected against discrimination as soon as they are diagnosed as HIV positive. Similarly, an employee with cancer is treated as having a disability from the point of diagnosis and possibly before the condition has an effect on their ability to carry out day-to-day activities.

Case law provides examples of conditions which have qualified as disabilities.

Diabetes 

In Clark v Newsquest Media (Southern) (2011) a diabetic employee was told to inject her insulin in the toilet. This only took a few seconds and her colleagues were comfortable with injections taking place in their presence. Her diabetes was a disability and the employer was ordered to pay more than £25,000 for disability discrimination.

In Metroline Travel v Stoute (2015), the Employment Appeal Tribunal held that a bus driver with Type 2 diabetes, controlled by a diet designed to reduce blood sugar levels, was not a disabled person under the Act. Type 2 diabetes isn’t automatically a disability, although other diabetics have established a disability.

Allergies

In Wheeldon v Marstons (2013), a chef was allowed to bring a disability discrimination claim based on a severe nut allergy under the Equality Act 2010.

Eczema 

In Glass v Promotion Line (2013) a disability discrimination case was allowed to proceed on the basis that severe eczema can be a disability.

Mental impairment

Mental impairments includes a wide range of mental health conditions, for example, anxiety, depression, and stress, and learning disabilities.

The effects of the impairment must fall within the definition of disability within the Act. The prognosis must also be long-term, and usually appropriate medical evidence is required.

Substantial and long-term

A number of cases turn on whether the adverse effect is substantial as it is often this aspect which will be questioned or challenged by the employer.

In deciding whether the adverse effect is substantial, rather than minor or trivial, the effect of any medical treatment the employee is receiving has to be disregarded where the beneficial effects of counselling were not to be taken into account when deciding on protection.

In the case of Parnaby v Leicester City Council (2019), the EAT decided that the employee did fulfil the necessary long- term requirement. He had been dismissed for lengthy sickness absence and his condition had been described as work -related stress. The fact that the stress was removed after a second period of absence lasting less than 12 months did not mean that his condition was unlikely to last for 12 months or more. The removal of the stress did not make any difference to the underlying condition or its likely recurrence.

By contrast in the case of Sullivan v Bury Street Capital (2019), a tribunal had been right to decide there was no long-term effect or likely recurrence. In 2013 Sullivan S split up with his Ukrainian girlfriend and began to have paranoid delusions that he was being followed by a Russian gang. He then had no further incidents until 2017 when more paranoid delusions appeared to set in. He was dismissed for poor performance and although he won his unfair dismissal claim he was not found to be protected as disabled; there was no likelihood of recurrence found on either date.

The Equality Act 2010 specifically excludes some conditions from being a disability. 

The following are excluded:

  • hay fever, except if it aggravates another condition
  • tattoos and body piercings (although those with severe disfigurements are protected)
  • a tendency to set fires, steal, or physically or sexually abuse others, or a compulsion toward exhibitionism or voyeurism.

Some addictions, including a dependency on alcohol, cigarettes and other drugs are also excluded. However, employers must be very careful. Whilst alcoholism is excluded from protection, related conditions such as depression or liver disease resulting from alcoholism could still be protected.

Addictions that result from medically prescribed drugs or other medical treatment are included within the Act.

To be a disability under the Equality Act 2010, an impairment must have a substantial and long-term adverse effect on a person's ability to perform normal day-to-day activities. The expression 'normal day-to-day activities' has a wide meaning and both work and non-work activities can be 'normal day to day activities'. 

Acas guidance makes clear that normal day-to-day activities would include things like using a telephone, reading a book or using public transport. For employees with mental health illnesses the inability to concentrate is likely to be a feature.

Some employers have tried to argue that an employee does not have a disability because a particular activity they cannot do is not a normal day-to-day activity. However, such arguments have not been very successful. A better strategy for employers would usually be to consider if any reasonable adjustments would be appropriate, rather than trying to deny that the definition of disability applies.

Case law

Each case involving normal day to day activities should be looked at individually, noting it is what the employee cannot do rather than what they are able to do.

Selection methods

A written exam required before promotion was held to be a normal day-to-day activity and the employee's dyslexia was held to be a disability, despite the high quality written work he had previously produced (see Paterson v Commissioner of Police of the Metropolis, 2007).

Night work 

Ordinary physical activities during a night shift were normal day-to-day activities which were difficult for the employee who had ME and had particular difficulties at night-time (see Chief Constable of Dumfries & Galloway v Adams, 2009). The court relied on the definition in a European case called Chacón Navas v Eurest Colectividades SA (2006) which also came up in the obesity cases, in term of examining whether the limitation hinders the participation of the person in professional life.

Physical activities

A train station employee had to stand for long periods, for example, at the ticket gates. This was held to be a normal day-to-day activity (see Aderemi v London and Southeastern Railway, 2012). The EAT ruled that the employment tribunal had concentrated too much on what the ticket collector was able to do in finding him not to be protected, instead of what he could not do. The EAT therefore overturned that decision. 

In one case, the EAT held that repeatedly moving and lifting weights of up to 25kg up in a warehouse was a normal day-to-day activity, rather than the speed at which they were required to do the piece work. An employee with a back injury that 'substantially and adversely' affected his ability to perform this task for his employer was disabled and the lifting requirement was found to cause him a substantial disadvantage which the employer had failed to address (see Banaszczyk v Booker, 2016).

The duty to make reasonable adjustments comprises three requirements which apply where a disabled person is placed at a substantial disadvantage in comparison to non-disabled people. A substantial disadvantage is more than a minor or trivial disadvantage. The three requirements are as follows:

  • Changing the way things are done (for example, changing a practice such as adjusting working hours)
  • Making changes to the physical environment where it would be reasonable to do so (for example, providing access to a building)
  • Providing aids and services (for example, special computer software).

There is no statutory duty to consult with the employees about adjustments, but it is best practice to do so. Employers also often use the services of an Occupational Health consultant to advise on the nature of the disability and the disadvantage caused by the PCP. At the end of the day however the employer must make the decision themselves as it is a management decision. The adjustments are usually designed to enable the employee to work and/or mitigate any disadvantages caused by the disability. At the recruitment stage and prior to making any job offer the Act permits the employer to make enquiries about a disability solely for the purposes of addressing the duty as part of the recruitment process.

It is not permissible for the employer (or other person bound by the duty) to pass on the costs of complying with it to an individual disabled person.

Examples

An employee develops carpal tunnel syndrome which makes it difficult for her to use a standard keyboard. The employer refuses to provide voice-activated software which would overcome the disadvantage. This could be an unlawful failure to make a reasonable adjustment which would constitute discrimination.

A financial adviser is a wheelchair user and would have difficulty negotiating his way around the customer area in a bank. In consultation with him, the bank rearranges the furniture in the customer area and installs a new adapted desk thereby avoiding a claim.

An employee in telesales suffers from severe headaches due to migraine and needs to take frequent short breaks from using their headphones. The employer says that they would miss targets if they did this but after investigation agrees to put this adjustment in place.

The Equality Act 2010 covers:
  • direct discrimination
  • discrimination arising from a disability
  • indirect discrimination
  • harassment
  • victimisation
  • the duty to make reasonable adjustments.

The Act also makes it unlawful, except in certain circumstances, for employers to ask about a candidate’s health before offering them work.

Direct discrimination

Direct discrimination occurs where a disabled person receives less favourable treatment than someone who does not have a particular disability. The difference with direct discrimination and discrimination arising from disability is that with ‘direct’, there is less favourable treatment because of the disability itself; whereas with discrimination arising from disability the unfavourable treatment comes from something connected with the disability. For example, a job applicant reveals they have fibromyalgia and does not get the job even though they are the best candidate. The employer assumes they will need too much time off.

(Direct discrimination also applies outside employment law in connection with provision of goods and services).

The comparator chosen for direct discrimination must be in materially the same circumstances and it is for the employee to identify that comparator whether actual or hypothetical. In the case of Owen v Amec Foster Wheeler Energy 2019 a failed job applicant was unable to identify a comparator. They suffered from a number of limiting physical impairments and the job involved them going to a high risk remote area in Dubai. The Court of Appeal said that a person who was also a medical risk, even if they did not have the same disability would be the correct hypothetical comparator and this person would also be refused the job for the same reason so Owen had no valid comparator to claim direct discrimination.  

Discrimination arising from a disability

The Act includes protection from discrimination arising from disability. This approach makes it disability discrimination to treat a disabled person unfavourably because of something connected with their disability (for example, a tendency to make spelling mistakes because of dyslexia); the employer has a defence if it can show that the unfavourable treatment is justified.

Discrimination arising from disability is only unlawful if the employer knew, or could reasonably be expected to know, that the person had a disability.

This type of discrimination can be justifiable if an employer can show that it is a proportionate means of achieving a legitimate aim.

This type of claim is likely to rise where the employee claims that action has been taken against them because of something arising from their disability, for example falling foul of a sickness tariff due to disability-related absence or being disciplined for their behaviour.  It can be justified with the legitimate aim defence.

Could an employee claim that their unacceptable behaviour stems from their disability? This is a difficult area and the short answer is ‘yes’. In the case of Grosset v City of York Council v Grosset, 2018 it was decided that there was no requirement for the employer to make the connection between the disability and the behaviour arising from it. Here a teacher suffering from stress and having to take a number of hours treatment each day for cystic fibrosis was dismissed for showing pupils the horror film Halloween. He argued that without these conditions he would not have acted inappropriately and so he succeeded both with this claim and one based on a failure to make reasonable adjustments.

There are other cases where behavioural issues have been claimed to have only occurred because of the employee’s disability and where the employee has therefore claimed that the employer’s actions in response to this were discrimination arising from disability.  In such circumstances the employer has the option of looking to see whether that was indeed the reason for their treatment (which is likely) or more importantly whether they can rely on the defence of justification which is part of the definition of this type of disability claim. Relying on this defence means that they can justify their reaction to unacceptable workplace behaviour even where it has arisen as a result of the employee’s disability, for example where it has caused disruption in the workplace

Indirect discrimination

Indirect disability discrimination occurs where a provision, criterion or practice that applies to everyone particularly disadvantages disabled people.

A job applicant or employee can claim that a particular rule or requirement an employer has in place disadvantages people with a disability.

For example, an employer has a rule that employees will be dismissed if they are late more than twice in any one month. An employee has multiple sclerosis and finds it difficult to get to work on time in the mornings because of problems with mobility. The employer’s rule is indirectly discriminatory on the grounds of disability.

In Government Legal Services v Brookes 2017 a job applicant with Asperger syndrome (a form of autism) was required to take an online test as part of the application process. She was successful in showing (amongst other claims) that this requirement placed her at a disadvantage with those who were not disabled and those who did not share her disability. The legal definition of disability indirect discrimination allows the disadvantaged employee to make either of these comparisons to show indirect discrimination.

Unless the employer could justify this requirement, it would be unlawful. In most indirect discrimination claims an employer may attempt to defend, or objectively justify its actions by showing that the provision was a proportionate means of achieving a legitimate business aim.

Harassment

Disability harassment occurs when, for a reason which relates to a person’s disability, another person engages in unwanted conduct which has the purpose or effect of violating the person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for the disabled person.

For example, a severely overweight employee with health difficulties is regularly taunted by colleagues at work because of her weight.

Victimisation

It is victimisation and unlawful for an employer to treat a worker less favourably than it would treat other people because that worker has made, or supported, a complaint under the Equality Act or because they are suspected of doing so.

For example, an employer threatens to take away a recent pay rise from a member of staff because she intends to support a colleague’s disability discrimination claim.

Duty to make reasonable adjustments

The duty to make reasonable adjustments only applies where a disabled worker is placed at a substantial disadvantage in comparison to a non-disabled person.  Some managers may take the view that they must attempt to make adjustments for each and every employee with this protected characteristic but the duty to make the adjustment will only arise where there is a provision criteria or practice (a `PCP`) in the workplace which places a disabled worker at a substantial disadvantage compared with people who are not disabled. 

If the employer fails to address that duty, they will be liable for discrimination. If however they make a proper and thorough attempt to comply with their duty but find that no adjustment is possible, they will not be liable for discrimination. A typical example will be numerous approaches taken to return a sick employee to work all of which prove unworkable.

In order to be required to comply with the duty the Equality Act confirms that the employer will only be required to address the duty if they knew both that the employee was disabled and also what the particular advantage was that had been caused by the PCP.   

For example, an employee with the local authority is suffering from depression and cannot cope with constant direct dealings with the public. A reasonable adjustment may be a less public-facing role if one is available.

Examples of reasonable adjustments include changes to working hours, flexible working, part-time or home working. Other adjustments may include a different role, reallocation of work duties or responsibilities, extra breaks, parking spaces, adjustments to office premises, auxiliary aids and services, extra training and, on some occasions, providing support workers.

Failure to make reasonable adjustments amounts to discrimination against the disabled person.

In cases of direct or indirect discrimination the treatment of the employee must be compared with that of an actual or a hypothetical person known as a comparator who does not share the same disability as the claimant, but who is (or is assumed to be) in circumstances which are not materially different from the claimant.

Example

A blind person was not short listed for a job because the employer wrongly assumed that blind people cannot use computers at all. An appropriate comparator to use is any person who is not blind. The legislation then requires the court or tribunal to compare the way the blind person was treated with the way the sighted person would have been treated. The comparator could also be someone with a different disability. The comparator must have other abilities to do the job as the claimant.

In the Equality Act, the concept of 'discrimination arising from disability' is aimed at preventing employers from treating disabled employees detrimentally because of their disability and in a way which cannot be objectively justified. The focus is on whether the detrimental treatment is linked to the disability. This category of discrimination does not require reference to a comparator.

If a disability discrimination complaint is upheld, the employment tribunal may take the following actions:

  • order the employer to pay compensation
  • award further compensation for injury to feelings
  • recommend that, within a specified time, the employer take reasonable action to prevent or reduce the adverse effect in question
  • make a declaration of the rights of the disabled person.

There is no upper limit on the compensation for disability discrimination. For general guidance on the approach to the calculation of compensation in a discrimination context, see our Tribunal claims, settlement and compromise Q&As which address the elements of financial loss, injury to feelings and aggravated damages.

The tribunals are not shy of making large disability discrimination awards; there have been several over the £100,000 mark. One of the items to take into account is the future loss element and that, for example, visually impaired people find it harder to obtain work and therefore the future loss element may be greater.

However, the average disability discrimination award has dropped significantly over the past three years and in 2014/2015 was £17,319 compared with £14,502 in the previous year. The highest disability discrimination award in 2014/2015 was £239,913 and the median award was £8,646.

Examples of recent awards include an award of £390,870.58 which was Wales' highest ever disability discrimination award. The claimant was a manager who was dismissed on the grounds of incapacity five months after he suffered a severe stroke. Before the stroke he worked 60 hour weeks and did not take full holiday entitlement. In order to return to his employment he was advised that he must avoid stress but his employer decided that no role was unstressful and dismissed him. This dismissal was disability discrimination and failure to make reasonable adjustments.

Regarding injury to feelings compensation, if different forms of discrimination arise out of different discriminatory acts the tribunal must assess the impact to injury to feelings separately. For example, in Jumard v Clwyd Leisure Ltd (2008) the claimant established race discrimination and disability discrimination. The Employment Appeal Tribunal held that the employment tribunal had adopted too broad brush an approach in fixing a single sum for injury to feelings and should have separately considered both forms of discrimination. If different forms of discrimination arise from the same discriminatory acts, the injury to feelings may be assessed together. However, if there were different discriminatory acts, injury to feelings must be assessed separately. The total figure must be proportionate overall and not involve double recovery.

Q&As

Where drug and alcohol abuse are of concern in the workplace organisations must train managers in the issues that can arise.  Many employers will introduce mandatory workplace testing via their policies for health and safety reasons, in particular where employees are driving or using machinery or mechanical equipment.

Addiction caused by taking prescription drugs or other medical treatment, can be a disability under the Equality Act 2010. Other addictions, including alcohol addiction, are not covered by the Act and an alcoholic will not qualify as a disabled person because of the addiction alone.

However, an employee with alcohol addiction may also have a physical or mental impairment, for example, a liver condition or depression, as a result of the addiction. It is the effects of the impairment that need to be considered, rather than the underlying condition itself. If an employee’s drinking results in a long-term condition, then the symptoms may still amount to a disability that is protected under the Act. If an employee is found to have a disability, employers must consider reasonable adjustments.

Dealing with alcohol problems at work

Drugs and alcohol abuse can have a serious impact on the day-to-day performance of employees including punctuality, behavioural issues, lower productivity and increased sick leave, or even accidents at work.

Employers should:

  • keep accurate, confidential records of instances of poor performance or other problems
  • privately ask the employee’s reasons for poor performance and question whether it could be due to a health problem, without specifically mentioning alcohol
  • make medical enquiries in order to ascertain whether there is an underlying or resulting medical condition, which falls within the definition of a disability
  • if appropriate, discuss any alcohol policy and occupational health or outside help available
  • arrange regular meetings to monitor progress and discuss any further problems.

Initiating disciplinary procedures may not be the most suitable option. Especially if there is long-term dependency, the matter is better dealt with as a capability issue.

If an employee accepts that there is an alcohol problem, a referral to counselling services or support groups may be appropriate. A clear time scale should be set for improvements in performance or attendance.

Organisations can monitor progress and make an informed decision about whether performance management is needed. Capability processes leading to dismissal can be an ultimate sanction depending on prognosis and treatment.

Although it does not qualify for protection against unlawful discrimination on its own, an overweight employee will be disabled if their mobility, physical co-ordination, or ability to lift, carry or otherwise move everyday objects, is affected. It is the effects of any impairment caused by the obesity that need to be considered, rather than the underlying condition itself. 

The government guidance uses an example of someone who has obesity giving rise to impairments such as mobility restrictions and breathing difficulties, and who is unable to walk more than 50 yards without a rest. Such an employee is more than likely to qualify as disabled.

Case law

In the case Kaltoft v Billund Kommune (2014), a Danish childminder, weighing over 25 stone, claimed he was dismissed due to his obesity. The European Court of Justice said that obesity could fall within the concept of disability, especially when the obese person was hindered by their condition from fully and effectively participating in their professional life on an equal basis with others. 

Harassment

A Northern Ireland decision, Bickerstaff v Butcher (2015), also upheld a claim for harassment from an obese employee who had been harassed on an almost daily basis. He was disabled, suffering from knee, joint and back pain, sleep apnoea, frequent tiredness and loss of concentration, all of which were directly linked to his weight.

Multiple health issues

In Walker v SITA Information Networking Computing (2013), an employee weighing over 21 stone brought a discrimination claim on the grounds of disability. He had numerous health problems, including asthma, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach complaints, anxiety and depression. The Employment Appeal Tribunal held he was disabled, confirming that 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) can be disabled.

These cases confirm obesity, when linked to an impairment which has a substantial effect on their ability to carry out day to day activities, could lead to protection under the Act.

To summarise, a person who is obese may be protected as disabled if:

  • the consequences of the obesity (such as heart disease) make the employee’s job more difficult or demanding
  • the resulting conditions are severe, for example, problems with mobility, endurance and mood may produce an impact which amounts to a disability.

The obesity of the worker must lead to a long-term limitation resulting from either physical, or mental/psychological impairments which hinder the full and effective participation in their professional life. It is irrelevant whether the obesity was due to a metabolic physical problem or a psychological problem.

Employers must take reasonable steps to prevent discriminatory activity against obese employees in the workplace. This includes situations where employers allow banter to continue. Inappropriate comments about an individual’s obesity, whether verbal or through social media, is disability harassment which may lead to tribunal claims for compensation, including damages for injury to feelings.

Employers should be alert to the possibility that assuming an apparently obese employee is disabled could lead to a claim of discrimination by perception. Employers should be tactful and not make assumptions about the needs of an obese worker, as not all obese employees have health problems.

Reasonable adjustments 

The need to make reasonable adjustments could therefore arise in cases where an employee’s medical condition stems from obesity.

An obese worker should have adjustments to enable them to do their job in the same way as a non-disabled person. This may include a request for flexible working or working from home or specialist equipment.

Employers who currently carry out risk assessments should make reasonable adjustments for obese employees if they have impairments affecting their abilities.

A wide variety of recurring, varying or managed conditions have been found to come under the protected characteristic of disability under the Equality Act 2010. Long-term and fluctuating or progressive conditions are covered, and the Act can apply to a past disability.

The definition in the Act set out in that section will be referenced by an employment tribunal and applied to any available medical evidence and the evidence of the employee in order to assess whether that employee has the protected characteristic of disability. The same exercise can be done by the employer where internal complaints have been made.

Long term and fluctuating

An employee has colitis, an inflammatory bowel disease. The condition is a chronic one, and she is prone to periods of remission and flare-ups. During a flare-up, she experiences severe abdominal pain and bouts of diarrhoea. This makes it very difficult for her to travel or go to work, which has a substantial adverse effect on her ability to carry out normal day-to-day activities. She is likely to be considered a disabled person for the purposes of the Act.

Medical conditions that vary over time

Is an employee disabled if their physical or mental health condition could become substantial again in the future? The House of Lords has held that they are disabled (see SCA Packaging v Boyle (Northern Ireland) [2009]).

Conditions managed by medication

Some employees receive medication that enables them to carry on normal day-to-day activities. Are they protected as disabled? 

In Sussex Partnership NHS Foundation Trust v Norris (2012) the Employment Appeal Tribunal found that increased susceptibility to infection was not a disability within the meaning of the Act because it would not have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities.

Recurring medical conditions

If a disability is likely to reoccur, the likelihood of this happening must be assessed at the date of the discriminatory act and subsequent events cannot be taken into account. 

In Richmond Adult Community College v McDougall (2008) a job offer was withdrawn after medical evidence revealed the applicant suffered from a mental illness. She had not suffered an episode of her illness for three years before her job application, but subsequently suffered a relapse and was committed to hospital under the Mental Health Act before the tribunal hearing. The court said that the correct approach was to assess the likelihood of the condition recurring at the time of the discrimination (namely the withdrawal of the job offer). The medical assessment at that time was that it would not be likely to recur and also it had not lasted for 12 months This was a Court of Appeal decision and so of importance in terms of exactly when to focus the likelihood of a recurring condition.

COVID-19: Following the COVID-19 pandemic, many individuals are reportedly suffering from ‘long Covid’, where they have a range of symptoms which arose following their recovery from the acute phase of the illness. The medical diagnosis of long Covid fluctuates and can be unclear due to our unfamiliarity with the condition. It is however quite possible that an employee with poor health following their initial recovery from COVID-19 may qualify for protection if their symptoms are consistent with the statutory definition. As time goes on, and where the symptoms continue or fluctuate, they will be increasingly likely to qualify for protection.

In determining whether a step which an employer may have to take is reasonable, the following may be helpful (this list is not exhaustive):

  • the extent to which taking the step would prevent the effect in question

  • the extent to which it is practicable for the employer to take the step

  • the financial and other costs which would be incurred by the employer in taking the step

  • the extent to which taking the step would disrupt any of the employer's activities

  • the extent of the employer's financial and other resources

  • the availability to the employer of financial or other assistance with respect to taking the step

  • the size and type of business.

Employers should remember:

  • the employee does not have to suggest adjustments but case law has suggested they should be listened to

  • the duty to decide on what would be a reasonable adjustment is on the employer

  • in making the adjustment they may need to treat a disabled person more favourably than a non-disabled one

  • the duty to make adjustments can apply after employment has ended for example as part of an appeal process

  • there is no exemption for small employers

  • there is no duty to make adjustments if the employer does not know or could not reasonably have known that the employee is disabled.

Case law examples

Would the adjustment alleviate the disadvantage?

To decide whether an adjustment is reasonable, employers must first identify the disadvantage faced by the relevant employee and whether the proposed adjustments would alleviate it. It is not enough to contend that there is no point following up with a suggested adjustment (as advised for example by a  medical expert) as it would not achieve any helpful outcome. The case of Romec Ltd v Rudham (2007) states this and precedes the Equality Act but is still relevant in ensuring that the exercise is properly thought through. 

Adjustments are primarily concerned with enabling the disabled person to remain in or return to work. The following decisions all highlight that to be reasonable, adjustments must be effective at enabling the disabled employee to reduce the disadvantage they suffer at work:

  • Adjustments including training and an unpaid career break would not have alleviated the employee’s disadvantage and were therefore not reasonable adjustments (see Salford NHS Primary Care Trust v Smith, 2011).
  • As long as an adjustment has a real prospect of removing a disadvantage, that is sufficient to make an adjustment reasonable. An adjustment may be reasonable even if there is a lower chance of it succeeding and it had not been properly considered before for that reason (see Leeds Teaching Hospital NHS Trust v Foster, 2011).
  • If an adjustment would never have succeeded there is no failure to make reasonable adjustments (see North Lancashire Teaching Primary Care Trust v Howorth, 2014).

Depression is an example of a mental impairment, as are symptoms of severe stress and anxiety.

These conditions may have been brought about by workplace pressures or problems, or be inherent, or may be a combination of both. Examples of the day to day activities that employees with this impairment find hard to cope with are long hours, concentrated work and interaction with others.

Depression does not have to be clinically well-recognised to qualify as a disability. Provided the depression has a serious, long-term and adverse effect on an employee’s ability to carry out their normal day-to-day activities, then the employee might argue that reducing their hours was a reasonable adjustment. An employer can alter the working hours of an employee with depression with the employee’s agreement but if the employee does not want to reduce their hours, they cannot be forced to do so. This is because such a reduction would inevitably mean they are less able to participate in the workplace and may lead to a reduction in pay.

Following the House of Lords decision in Archibald v Fife Council 2004, employers have been on notice that in order to ameliorate a disadvantage a disabled employee may be entitled to preferential treatment., Nevertheless the extent to which paying someone not to work amounts to a reasonable adjustment is limited

If, on the other hand, there is no agreement because the employee wants to work less but the employer insists they work full time hours, the duty to make reasonable adjustments may still exist. The employer should be looking at other options aimed at keeping the employee in the workplace. It’s better to approach the possibility of a request for a reduction in hours more purposefully. For example, an employee on medication for depression may struggle with drowsiness and lack of energy in the mornings, so the employer could agree to the employee starting their working day later.

Other options may include re-arranging a work station to give the employee more quiet and privacy, allowing extra breaks from intensive work or offering the services of work based counselling or one to one ‘catch ups’ with a manager familiar with the condition.
If an employer knows, or could be expected to know, of an employee’s disability then the employer must make the changes requested provided they are reasonable. This duty applies when:

  • an employee with a disability is having difficulty with any part of their job
  • an employee’s absence record, sickness record or delay in returning to work is linked to their disability.

Rather than trying to argue that an employee’s condition is not a disability and, therefore, the reasonable adjustments duty does not apply, it may be simpler for the employer to focus on what reasonable adjustments can be made.

Reviewing the situation

An employer should keep a disabled employee returning to work after a period of absence under regular review and should react to any changing circumstances.

Issues can arise concerning the length of a reasonable adjustment. In one case, a Jobcentre employee on long term sickness for a year had a GP’s fit note which recommended a phased return to work on altered hours over three months. His condition was heart trouble rather than depression but the facts could equally apply. The employer proposed he build up to his normal hours over 13 weeks. The employee made a counter proposal of 26 weeks and refused to return to work unless this was met. The employer dismissed him and he claimed breach of the duty to make reasonable adjustments and unfair dismissal.

The employment tribunal said the employer had unfairly dismissed the employee and breached the duty to make reasonable adjustments because it rejected the possibility of allowing a further period on reduced hours before returning to working normal hours. However, the Employment Appeal Tribunal said this was not a failure to make reasonable adjustments. Employers may fulfil their duty to make reasonable adjustments by offering a disabled employee reduced hours only for a fixed period, provided organisations then review the situation at the end of that time period (see Secretary of State for Work and Pensions v Higgins, 2013).

Employers often receive GP ‘fit notes’ advising that an employee should work reduced hours for a certain duration. If an employer grants the reduction in hours that the employee says they are capable of working, the employer may not need to give an explicit guarantee of an endless extension to a reduced hours period. However, if an employee tries a fixed period of reduced hours but then continues to suffer a substantial disadvantage when returning to fuller hours, the duty to make reasonable adjustments will still be applicable and the employer should assess whether the time period needs to be extended.

If an employee was dismissed outright for not working full hours, the employer would be vulnerable to a disability discrimination claim and the justification defence does not apply to the duty to make reasonable adjustments. All an employer may be able to show is that a particular adjustment is unreasonable.

It could be it disability discrimination for an employer to reduce pay in a situation related to ill health absence if the underlying reason for the absence is a disability. It may not only be a breach of contract but also discrimination arising from a disability which the employer would have to show was justified.

An employee may still be entitled to be paid full pay for an entire period of sickness absence, but that is more likely where the absence is longer because of a failure by the employer to make other reasonable adjustments or where there are real prospects of the employee returning to work after a period of time, for example if recovering from cancer treatment.

Case law

In O'Hanlon v Commissioners for HM Revenue and Customs [2007] IRLR 404, CA an employee who suffered from clinical depression claimed disability discrimination. Her condition did amount to a disability under the Disability Discrimination Act 1995 (the same principles apply under the Equality Act 2010). Over four years she had 365 days off sick, 320 of which related to her disability. The employer’s sick pay policy provided for full pay for up to six months absence in any 12 months, and half pay for up to a further six months, subject to an overriding maximum of 12 months paid leave in any four year period. The employee claimed that she should have been paid in full for all disability related sickness absences and that:

  • she was substantially disadvantaged by the policy compared to non-disabled employees
  • the HMRC had not made reasonable adjustments to its policy to allow her to receive full pay while off sick and
  • she had been subject to disability-related discrimination since her absence was related to her disability and the failure to continue paying her was unjustified.

The Court of Appeal held that whilst technically there may be discrimination on the grounds of disability as a result of the reduced sick pay the employer had taken reasonable steps to prevent any disadvantage by reducing the employee's working hours and transferring her to a more convenient location. In addition, there were powerful economic reasons to justify the sick pay policy adopted. The cost of changing the sick pay policy would be excessive for this employer (estimated to be in the region of £6 million per annum) if it were to pay full pay to all disabled employees for their entire period of absence.

It appears that an employer would only very rarely be expected, as a reasonable adjustment under the Act, to give a disabled employee more sick pay than a non-disabled employee.  The courts are anxious to clarify that meeting the reasonable adjustments duty is aimed at the employee staying in work or returning to work and participating in work and not being paid to stay at home which was what O` Hanlon was asking for as an open-ended adjustment.

A threat to reduce pay which never actually happens may be unlawful discrimination, so employers should be able to fully justify any pay reduction before discussing it with the disabled employee. In limited circumstances it may be safer for employers to continue sick pay for disabled employees even after their contractual entitlement has finished but only where there is an end in sight or another option which would allow the employee to continue working.

Employees who are discriminated against because of their association with a disabled person may in some circumstances claim disability discrimination. The case of Coleman v Attridge Law LLP (2008) established that a woman who was dismissed when she was often late for work due to the care of her disabled child had been subject to direct discrimination by association. This provision is now part of the Equality Act where it refers in the direct discrimination definition to less favourable treatment ‘because of a’ protected characteristic rather than the employee’s protected characteristic).

This case and later case law confirms that it is only where there has been direct discrimination or harassment that employees may bring claims of associative disability discrimination. They cannot claim that they should have a reasonable adjustment put in place to help them assist with, for example, the disabled person’s caring or schooling arrangements.

See, for example, the European case of Hainsworth v Ministry of Defence (2014) where an employee at an army base wanted to be moved in order to be near his child`s special school. The case established that he could not claim any right to a reasonable adjustment in these circumstances.

Although employers do not have to make such adjustments in similar situations, some employers may choose to do so if the request is easy and cost effective to accommodate. Employers should bear in mind that employees (including those with caring responsibilities) have the right to request flexible working and employers should ensure that such requests are considered reasonably.

An employer’s duty to make reasonable adjustments for a disabled employee does not mean an employer has to completely disregard the normal absence triggers in its absence policy. But Absence management procedures should not discriminate against disabled employees. Applying a policy in a uniform way and ignoring sickness absence that arises from a disability can be a risky approach for employers to take.

Many employers do allow disabled employees a few extra days off sick before formal sickness absence procedures are triggered, which is probably a good practice approach. The stress of being subjected to formal proceedings for exceeding the sickness absence trigger point can exacerbate some existing conditions. So employers should treat disabled employees sensitively but can also use the absence procedure when reasonable and necessary.

So if a disabled employee has some increased absences due to their disability, it is probably reasonable for the employer to adjust the rules of the absence policy. As is often the case the employer must behave reasonably depending on the level of absence, the prognosis and likely future absences.

However if an employee has more significant absences, the fact that these absences are disability-related does not automatically mean the disabled employee is immune from the absence policy or attendance management or even dismissal.

A useful case on disability and sickness absence policies is Griffiths v Secretary of State for Work and Pensions, 2015. Here the Court of Appeal (CA) agreed with the employment tribunal. In most cases the duty to make reasonable adjustments will apply when disability-related absences trigger use of an absence policy. However, on the facts of this specific case, the adjustments the employee suggested were not reasonable.

A disabled employee may have a level of absence which a non–disabled employee is unlikely to have. This means an absence policy will often substantially disadvantage the disabled employee. So the key question is whether it is reasonable for the employer to adjust the normal rules of the policy in the particular circumstances of the case?

If an employee can no longer fulfil their duties because of their disability, an employer is entitled to dismiss that employee subject to proper procedures being followed and every attempt has been made to eliminate any possible discrimination, such as a careful approach to the reasonable adjustments duty. The reason for the dismissal will be the fair reason of capability. Great care should be taken in the procedures followed, to avoid a claim for both disability discrimination and unfair dismissal. Although two years`service would be required to pursue a claim for unfair dismissal there is no service requirement for claims of discrimination. Some of the key steps that should be taken are:

  • Ask the employee to see a company doctor or occupational health expert or alternatively to obtain the employee's consent for the employer to obtain a medical report from the employee's own GP.
  • In requesting a medical report, the employer should also ask specific questions about the patient's capabilities and difficulties and explain about the tasks they are expected to perform for their job.
  • The employer could ask the medical expert what reasonable adjustments might facilitate the employee's return to work and consider these, including reduction of working hours, reallocation of duties, more time off and so on.
  • If the report indicates that the employee is not fit to do their job and reasonable adjustments would not improve their ability to perform their duties, the employer should discuss the implications of the report with the employee.  The employer should take that advice into account and must itself make the final decision as to what, if any, reasonable adjustments might benefit the employee 
  • This might include the employer looking for alternative work for the employee within the organisation.
  • The Acas code of practice on disciplinary and grievance procedures does not need to be followed in case of ill health capability dismissals but it will be good practice to mirror the procedures recommended in the Code and/or use an internal procedure for capability dismissals with due consultation at the appropriate stages.
  • Dismissal of the employee on notice will be appropriate only if there is no alternative available.

Case law

With long-term ill-health absence and disability discrimination a key issue is often whether the employer could have been expected to wait longer before dismissing the employee.

In Monmouthshire County Council v Harris(unreported, UKEAT/0010/15 9 September 2015, EAT) a Senior Education Welfare Officer was disabled as a result of four chronic conditions: depression, sinusitis, asthma and underactive thyroid. The local authority was aware of her illnesses and an occupational health report had recommended that she worked partly at home, which she did. Her new manager decided that this would no longer be allowed and she was dismissed following a period of absence.

She brought claims for unfair dismissal, failure to make reasonable adjustments, and discrimination arising from disability. The employment tribunal (ET) found that her dismissal was unfair and that the Council had not given sufficient consideration to its failure to make reasonable adjustments before dismissing her. The ET awarded £238,216.37 in compensation and the local authority  then appealed.

The Employment Appeal Tribunal (EAT) identified that the crucial question was whether the employer could be expected to wait longer before dismissing the officer and in considering this, the following points were relevant:

  • The employer should consider what the employee says about their absence and what the medical evidence says.
  • An employer who causes an employee to be absent can still fairly dismiss the employee.
  • Disability related absences can be taken into account when dismissing for incapacity but must be justified as a proportionate means of achieving a legitimate aim.

The EAT found that the ET had erred because although it was entitled to consider the previous failure to make reasonable adjustments, it should also have considered proportionality and all the other circumstances of the decision to dismiss.

Key points for employers

Before deciding to dismiss employers should:

  • Make all possible reasonable adjustments to facilitate the employee’s return to work.
  • Provide sufficient warning to the employee about the risk of dismissal if the absence continues.
  • Consult with the employee about why they are off work and what might be done to encourage a return to work.
  • Wait long enough to find out whether or not the employee might return to work before dismissing.
  • Consider if the absence might have been caused by a failing on the employer’s part.
  • Follow carefully internal procedures for capability dismissals, being prepared, if necessary, to raise the justification defence in relation to discrimination arising from disability and collect  evidence of detailed efforts to address the duty to make reasonable adjustments .

Yes, if a disabled employee genuinely commits sufficiently serious misconduct then an employer is entitled to dismiss that employee subject to proper procedures being followed. Great care should be taken in the procedures followed to avoid a claim for both disability discrimination and unfair dismissal.

Employers should follow the usual dismissal procedures and those recommended in the Acas Code of practice on disciplinary and grievance procedures.

The employer will, as always, investigate thoroughly and listen to the employee’s explanation to make sure that the grounds for dismissal are entirely unrelated to the disability. For example, to dismiss a person for persistent lateness after all the appropriate procedures have been followed may be reasonable, but if the lateness was caused by their disability then this would not be appropriate.

Some of the key steps to take are:

  • Attempt to deal with matters informally, if the misconduct is minor, to see if the problem can be resolved before it escalates.
  • In the course of the procedures, ask specific questions about the reasons for the misconduct and explain why that conduct is inappropriate.
  • Give the employee the opportunity to improve in the usual way.

Dismissing the employee on notice will be appropriate only if there is no alternative available. The Acas code and the organisation's full disciplinary, dismissal and grievance procedures should be followed with due consultation at the appropriate stages (see our Discipline and grievance procedures Q&As).

For some time, employment tribunals have shown an increasing willingness to attribute knowledge of an employee’s disability to an employer.

A tribunal can order details of an actual medical condition to be disclosed in order to properly and fairly assess whether a claimant has suffered a disability (see Leeks v St Georges Healthcare NHS Trust, 2011).

If there is any doubt about whether an employee’s condition meets the legal definition of disability, organisations should check with a solicitor and, until then, assume that there could be a disability rather than trying to avoid knowledge of the issue.

Legal position

The precise legal position concerning knowledge depends on the type of disability claim – direct discrimination, harassment, failure to make reasonable adjustments, and so on – which is eventually brought.

Direct discrimination

An employer will be liable for an act of direct disability discrimination if it knew, or ought reasonably to have known, that the employee was disabled.  It does not matter if the employee has not formally confirmed that they are disabled. If an organisation fails to recognise the obvious, it may still be liable and should be aware of the potential discriminatory impact of its decisions. Employers should, therefore, be proactive.

Assessing whether an employee is disabled is problematic, particularly in a case of mental illness. If employers suspect an employee may be suffering from a potential disability, they should investigate, rather than just ignore the problem and risk less favourable treatment of that employee.

Indirect discrimination

An employer can commit indirect discrimination without knowing about an employee's disability.

Reasonable adjustments 

An employer is under an obligation to make reasonable adjustments if it knew, or could reasonably be expected to know, that an employee has a disability and was likely to be put at a substantial disadvantage because of it.

Discrimination arising from a disability

An employer will be liable where it could reasonably be expected to know that the person has a disability.

Harassment

Harassment can occur where an employer perceives an employee to have a certain condition when they do not, in fact, have the condition. In addition, an employee can consider themselves subject to harassment where they are offended by comments made about another person's disability.

Employers can face unfair dismissal claims and sex, age or disability discrimination claims under the Equality Act 2010 of they do not handle menopause related issues correctly.

Other legal obligations include Health and Safety at Work Act 1974, which requires employers to ensure the health safety and welfare of their employees, and the Workplace (Health, Safety and Welfare) Regulations 1992 which require workplaces to be suitable for all who work in them.

Disability discrimination

Although not a significant area of disability discrimination there has been case law in which menopausal women have shown that the condition amounted to a disability. In the case of Davies v Scottish Courts and Tribunal Service (2018) the employee won claims for unfair dismissal and discrimination arising from disability. Her symptoms were a physical and mental impairment which had a substantial and long-term adverse effect on her ability to carry out normal day to day activities. Her employment was reinstated, and she was paid her wages and compensation amounting to some £19,000.

The issue for employers should not be whether the menopause generally is a disability, but whether the employee they are seeking to manage has symptoms that meet the definitions under the Equality Act. The law requires that the condition must have a physical or mental impairment which has a substantial and long term adverse effect on an employee’s ability to carry out day to day activities. Whilst each case is different, menopausal symptoms can manifest themselves over several years and can, for example, affect ability to concentrate which will fall within the Equality Act. Whether menopausal symptoms may be considered a disability will depend on exactly how an individual woman is affected at the time. Any failure to make reasonable adjustments to accommodate the symptoms may also lead to a discrimination claim.

Sex discrimination

Any less favourable treatment, or for example an employer imposing a strict uniform policy or refusing any requests to wear cooler uniform during the menopause could amount to indirect sex discrimination.

Age discrimination

Given that the menopause usually affects women of a certain age, working practices that adversely affect women of menopausal age may lead to age discrimination claims.

Case law examples

In the case of Merchant v BT plc (2012), a BT employee with menopausal symptoms was not treated in the same way as employees with other medical conditions would have been treated. The employee was dismissed, and subsequently won claims for unfair dismissal and direct sex discrimination under the Equality Act 2010.

In the past, the menopause has been something of a taboo subject for both employers and employees. However, a third of all workers are now over 50, and 68% of these are female, which means increasing numbers of organisations rely upon staff of menopausal age; that brings with it a need to be more aware of health issues such as menopause.

Many employees will be largely unaffected by menopausal symptoms, but employers should take care of the health, safety and welfare of all employees, including women who are affected. Employees may require additional support at work during this time; acknowledging this helps retain the loyalty of dedicated female staff.

Support

The support needed will vary according to the different ways in which the menopause affects different people in varying occupations and workplaces.

Tailored policies

Issues affecting women’s health (including menopause) can be added to an employer’s health and safety policy or accommodated in an absence or flexible working policy.

Risk assessments

Assessments of any specific risks to menopausal women should be carried out to ensure that the working environment supports their needs. Risks include stress, which can accelerate menopausal symptoms. (For the duty to carry out risk assessments see the Management of Health and Safety at Work Regulations 1999).

Communication

Individual employees will have different symptoms and requirements. Some women will feel uncomfortable seeking help from a male line manager, so organisations should provide alternative people to speak to. Feedback is always useful to create a set of working conditions which will help employees if required. Adaptability by the employer will help meet individual needs.

Training

Equality and diversity training for managers which includes menopausal information may help change an organisation’s culture of embarrassment or avoidance of the issue. Managers should be trained to understand menopausal symptoms and the necessary adjustments to support employees affected. With training, managers may be more flexible and sympathetic to requests for different working hours, breaks, a rest, or home working.

Arrangements to support employees’ needs may involve:

  • Increased frequency of work breaks.
  • Flexible working arrangements surrounding working hours. Later starts, for example, can help women who suffer sleep loss.
  • Reduced workload or rearranging formal meetings or presentations may help if requested.
  • Occasional or regular home working may be helpful for the management of some symptoms.
  • Easily accessed toilet facilities, rest rooms and access to cold water.
  • Temperature, humidity and ventilation changes to office environment.

These may be relatively low cost but may make a big difference. The employee could be given some control of the workplace temperature and ventilation including air conditioning and desk fans, provided this is welcomed by the employee.

Reconsideration of the suitability of uniform or corporate clothing provided to workers may be helpful alongside promoting awareness of occupational health services which can, if needed, offer guidance on how to deal with the menopause.

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