Explore the legal aspects of disability discrimination and the issues employers should consider when dealing with disabled people
The main piece of legislation governing disability discrimination in Great Britain is the Equality Act 2010 (the Act) which came into force on 1 October 2010 replacing the Disability Discrimination Act 1995 (DDA) and the numerous statutory instruments which amended and supported that Act.
These Q&As focus on the employment relationship and the duties owed by employers towards employees. However, disability discrimination is a vast subject area and extends far beyond the employment relationship, for example to duties owed by educational establishments and provision of services to the public. Under the Act, Parts 2 and 5 deal with employment matters, whereas other parts address other spheres. Part 3 deals with provision of services, goods or facilities or when exercising a public function, Part 4 deals with selling or letting or managing premises and Part 6 deals with education and so forth.
The Act is supplemented by a statutory Code of practice on employment law which may be used in evidence in legal proceedings brought under the Act. Employment tribunals take the code into account.
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.
How does the Equality Act define disability?
Under the Equality Act 2010 (the Act), disability is a protected characteristic. The key definition is:
- a physical or mental impairment, that
- has a substantial (that is, more than minor or trivial) and
- long-term adverse effect, on
- the ability to carry out normal day-to-day activities.
The Act relies on the general requirement of a substantial and long-term effect on a person's ability to carry out normal day-to-day activities (without specifying what those activities might be). For further information, see What are 'normal day-to-day activities' for the purposes of disability discrimination legislation?
The Act also protects anyone who has, or has had, a disability. People can also be discriminated against because of a disability they do not personally have.
- An employee has suffered from depression in the past and because of this is harassed at work. This still meets the Act's definition of disability and would be unlawful.
- An employee is treated less favourably because his wife has motor neurone disease – this would be unlawful discrimination as well.
Impairments covered will include 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 to constitute a disability include chronic fatigue syndrome, schizophrenia, rheumatoid arthritis, diabetes, epilepsy, visual impairments, impaired hearing and dyslexia. These are simply examples and many more categories may be included. Recent cases include:
- Wheeldon v Marstons plc (2013): A chef was allowed to bring a disability discrimination claim based on a severe nut allergy under the Equality Act 2010.
- Glass v Promotion Line Ltd (2013): Disability discrimination case was allowed to proceed on the basis that severe eczema can be a disability under the Equality Act 2010.
- Metroline Travel v Stoute (2015): The Employment Appeal Tribunal held that a bus driver with Type 2 diabetes controlled by a diet which was designed to reduce blood sugar levels was not a disabled person under the Equality Act 2010. Type 2 diabetes isn’t automatically a disability, although other diabetics have established a disability. See Can a disabled employee be dismissed on the grounds of ill health?
'Mental impairment' includes mental health conditions, learning difficulties and learning disabilities. Some people, including those with cancer, multiple sclerosis and HIV/AIDS, are expressly protected as disabled people. People with severe disfigurement will also be protected, without proving that there is a substantial adverse effect on their day-to-day activities.
- Does the applicant have an impairment which is either mental or physical? 'Mental impairment' can cover depression or stress, as long as the effects of the impairment fall within the definition. The prognosis must also be long-term and usually appropriate medical evidence is provided.
- Is the adverse effect substantial, rather than minor or trivial? The effect of any medical treatment the employee is receiving should be disregarded when assessing the effect (see Kapadia v London Borough of Lambeth (2000)).
- Are the substantial effects long term? An impairment will be long-term if it has lasted for at least 12 months, or is likely to last for 12 months. It will also be long term if it is likely to last for the rest of the life of the person affected even if their life expectancy is less than 12 months. The effect may be judged as long term even if the symptoms are not continuous, provided that they are likely to recur.
- Does the impairment affect the applicant's ability to carry out normal day-to-day activities? See What are 'normal day-to-day activities' for the purposes of disability discrimination legislation?
For case law guidance, see Are individuals with recurring, varying or managed conditions suffering from a disability?
Guidance on definition of disability
The question of who is disabled encompasses a broad category of persons. The Equality and Human Rights Commission has issued official guidance on matters to be taken into account in determining 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 which is determining whether a person is a disabled person to take into account any aspect of the guidance which appears to it to be relevant.
Employers must remember that depression, extreme stress and other forms of mental illness form the basis of increasing numbers of disability discrimination claims.
Are recurring, varying or managed conditions 'disabilities'?
The approach to take when assessing whether a person is disabled is set out in the related question on the definition of disability.
Under the Equality Act 2010 a wide variety of recurring, varying or managed conditions are covered. Long-term and fluctuating or progressive conditions are covered. The Act can apply to a past disability.
A young woman has developed colitis, an inflammatory bowel disease. The condition is a chronic one, and she is prone to periods of remissions 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. This 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 Equality Act 2010.
Employees with medical conditions that vary in severity 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 the answer is Yes (SCA Packaging v Boyle (Northern Ireland) (2009)).
Employees with medical conditions managed by medication
Some employees receive medication that enables them to carry on normal day-to-day activities. Are they disabled?
In Hiero v Changework Now Ltd (2009) the claimant had dysphoria, causing speech and concentration problems that he controlled with medication. When his job application was rejected he claimed disability discrimination. The employer argued the claimant was not protected as there were no substantial adverse effects caused by his condition and therefore it did not come within the definition of a disability. The Employment Appeal Tribunal rejected the defence, finding that the tribunal should have considered what the effects of the claimant's condition would be like without medication.
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. An increased frequency of infections would not have a substantial adverse effect on the claimant’s ability to carry out normal day-to-day activities.
Employees with recurring conditions
If a disability is likely to reoccur, the likelihood 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 the job application, but before the tribunal hearing she suffered a relapse and was committed to hospital under the Mental Health Act.
What are 'normal day-to-day activities' for the purposes of disability discrimination legislation?
The expression 'normal day-to-day activities' is used under the Equality Act 2010 (the Act). The general requirement is that an impairment have a substantial and long-term effect on a person's ability to perform normal day-to-day activities.
'Day-to-day' activities are deliberately not defined, though the Acas guidance makes clear that normal day-to-day activities would include things like using a telephone, reading a book or using public transport.
Each case must be looked at individually. For example, repeatedly moving and lifting cases to a target speed is not a 'day-to-day' activity. An employee with a back injury that 'substantially and adversely' affected his ability to perform this task for his employer would be disabled for the purposes of the Equality Act 2010 (Banaszczyk v Booker (2015)).
The Office for Disability Issues guidance covers matters to be taken into account in determining questions relating to the definition of disability.
Can an employer discriminate without knowledge of an employee's disability?
Direct discrimination The position is now established; it does not matter if the employee has not formally confirmed that they are disabled. If an employer fails to recognise the obvious they may still be liable and should be aware of the potential discriminatory impact of their decisions. Employers should therefore be pro-active. 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, rather than just ignoring the problem and risking less-favourable treatment of that employee they should investigate.
Reasonable adjustments The position is slightly different; an employer is not under an obligation to make reasonable adjustments if the employer did not know and could not reasonably be expected to know that employee has a disability and was likely to be put at a substantial disadvantage.
It has previously thought that knowledge of a person’s disability was irrelevant for the purposes of disability related discrimination, but in Mayor and Burgesses of the London Borough of Lewisham v Malcom (2008) the House of Lords confirmed that knowledge, or at least imputed knowledge, of a person’s disability is required in order for a person to be liable under the old Disability Discrimination Act 1995. For discrimination arising from a disability the employer will be liable where they could reasonably be expected to know that the person has a disability.
So that the tribunal can properly and fairly assess whether the claimant suffers a disability, it is appropriate for a tribunal to order that details of the actual medical condition be disclosed (Leeks v St Georges Healthcare NHS Trust  EWCA Civ 1551).
Earlier employment tribunal cases have shown an increasing willingness to fix an employer with knowledge of an employee’s disability (Department for Work and Pensions v Hall (EAT/0012/05, 31 August 2005)).
The EHRC Statutory Code of Practice on Employment also says that if an employer's agent or employee (such as an Occupational Health advisor) knows of the disability then employers should not be able to defend a disability discrimination claim by saying they did not know.
An employer cannot hide behind an occupational health report when deciding whether an employee is disabled (Gallop v Newport City Council (2012)). Employers cannot simply 'rubber stamp' an external opinion, but have to make a factual judgment themselves as to whether or not the employee is disabled.
For information on obtaining medical reports see our Absence procedures Q&As.
How do the disability discrimination provisions in the Equality Act 2010 affect recruitment?
What types of discrimination claim can a disabled employee or job applicant make against an employer?
The Equality Act covers:
- direct discrimination
- discrimination arising from a disability
- indirect discrimination
- breach of 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 occurs where a disabled person receives less favourable treatment than someone who does not have a 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.
Previously, direct disability discrimination focused on the workplace. Now direct discrimination applies in other areas, such as access to goods and services so that disabled customers are protected as well.
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 they can show that the unfavourable treatment can be justified.
Key aspects to note are that:
- Discrimination arising from disability is only unlawful if the employer knew, or could reasonably be expected to know, that the person has 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.
Indirect discrimination occurs where 'A' applies to 'B' a provision, criterion or practice which applies to everyone, but particularly disadvantages disabled people. Indirect discrimination already applied to age, race, religion or belief, sex, sexual orientation, marriage and civil partnership. The Act extends indirect discrimination to cover disability.
Now that indirect discrimination finally applies to disabled people, it means that a job applicant or employee could claim that a particular rule or requirement an employer has in place disadvantages people with a disability. Unless the employer could justify this, it would be unlawful. In most indirect discrimination claims an employer may attempt to defend, or objectively justify their actions by showing that the provision they adopted was a proportionate means of achieving a legitimate business aim.
Victimisation makes it unlawful for one person to treat another less favourably than they would treat other people because that person has made or supported a complaint, or raised a grievance under the Act (or previous legislation), or because they are suspected of doing so. In a disability context, a victimisation claim will arise where some-one is treated less favourably because they brought disability discrimination proceedings or gave evidence or information in connection with discrimination proceedings etc.
Under the Act there is no longer a need to use a comparator to measure the treatment of the ‘victim’ with another person who has not made or supported a relevant complaint.
Disability harassment occurs when, for a reason which relates to a person’s disability, another person engages in unwanted conduct which may violate the person’s dignity or create an intimidating, hostile, degrading, humiliating or offensive environment for that person. Under the Equality Act 2010 employers were made expressly liable for harassment of employees by third parties. However these provisions were repealed from 1 October 2013 and the legislation differs before and after that date (Sex discrimination Q&As).
Duty to make reasonable adjustments
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. Failure to comply with any one of the reasonable adjustment requirements amounts to discrimination against the disabled person (see What adjustments are employers expected to make for a disabled employee?).
Is it disability discrimination to ask applicants to complete a pre-employment medical questionnaire or medical check?
What adjustments are employers expected to make for a disabled employee?
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. The adjustments are usually designed to enable the employee to work and/or mitigate any disadvantages caused by the disability. (As long as the enquiries relate to the duty to make reasonable adjustments, employers can make enquiries about disability prior to making a job offer.)
It would never be reasonable for the employer (or other person bound by the duty) to pass on the costs of complying with it to an individual disabled person. Failure to comply with any one of the reasonable adjustment requirements amounts to discrimination against the disabled person.
There were of course similar provisions in pre-Act legislation. However, the Act aims to be more consistent and simpler. The provisions apply to employment, but also in the provisions of services to customers and so forth.
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.
A visually-impaired prospective tenant asks the landlord to provide a copy of a tenancy agreement in large print. If the landlord refuses it will be an unlawful failure to make a reasonable adjustment which would constitute discrimination.
For more information, see How can an employer decide whether an adjustment for a disabled employee is reasonable?
How can an employer decide whether an adjustment for a disabled employee is reasonable?
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 also remember:
the employee does not have to suggest adjustments
the duty to make adjustments is on the employer
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
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.
If the employer did not know the employee was disabled or could not reasonably know the employee was disabled or the adjustment was ineffective, too costly, or not practicable then there may be a defence for the employer.
Case law examples
Mere failure to consult on is own is not a failure to make a reasonable adjustment, although clearly it is still best practice to do so (HM Prison Service v Johnson (2007)).
The extent of the duty to make adjustments will depend partly on the amount of information volunteered by the employee. However, the employer cannot simply wait to be told but must investigate what adjustments can be made (Mid Staffordshire General Hospitals NHS Trust v Cambridge (2003)).
Disproportionate cost implications are a legitimate consideration for employers (Foreign and Commonwealth Office v Cordell (2011)).
Offering a disabled employee reduced hours for a fixed period may be a reasonable adjustment, although employers should always be prepared to review this (Secretary of State for Work and Pensions (Job Centre Plus) v Higgins (2013)).
Would the adjustment alleviate the disadvantage?
It is important to consider if the adjustment would actually have helped in preventing the disadvantage faced by the employee. It is not enough to contend that a potential adjustment was suggested and not made, if that adjustment would not have helped anyway (Romec Ltd v Rudham (2007)).
When employers consider what is a reasonable adjustment they must first identify the disadvantage faced by the relevant employee and whether the proposed adjustments would alleviate it. The adjustments must prevent a disabled person from being placed at a substantial disadvantage, compared to those employees who are not disabled.
Other rulings provide some helpful guidance on this issue:
- Adjustments including training and an unpaid career break would not have alleviated the employee’s disadvantage and were therefore not reasonable adjustments (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 (Leeds Teaching Hospital NHS Trust v Foster (2011)).
- If an adjustment would never have succeeded there is no failure to make reasonable adjustments (North Lancashire Teaching Primary Care Trust v Howorth (2014)).
- Employers will not fail in their duty to make reasonable adjustments if they refuse to help a disabled employee retire early on ill-health grounds. Reasonable adjustments are steps which make it possible for the employee to remain in employment, not steps enabling a transition into retirement (Tameside Hospital NHS Foundation Trust v Mylott (2011)). It should be noted that this disability-related discrimination claim was decided under the pre-Equality Act 2010 Malcolm test. An employer that dismisses an employee because of absence arising from a disability will now have to show that the dismissal was a proportionate means of achieving a legitimate aim).
These 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 are primarily concerned with enabling the disabled person to remain in, or return to work. Career breaks, trial periods, consultations and investigations do not constitute reasonable adjustments as they do not directly assist with the employee's returning to work.
Can an employer avoid reducing working hours for an employee with depression?
An employer will only be able to avoid making a reduction in working hours for an employee who is suffering from depression with great difficulty under the Equality Act 2010. The better approach would be to approach the possibility of a reduction in hours more positively.
To qualify as a disability, depression does not have to be clinically well-recognised. Provided the depression does qualify as having a serious, long-term and adverse effect on the carrying out of normal day-to-day activities, then the employee could argue that adjusted hours were reasonable. The employer would then need to argue that adjusting the existing hours was unreasonable.
If the employee were dismissed the employer would be vulnerable to a disability discrimination claim. With respect to the duty to make reasonable adjustments for an employee, the defence of justification is not available. All an employer may be able to show is that a particular adjustment is unreasonable.
Is the duty to make reasonable adjustments the same for disabled employees and employees who are carers of disabled people?
The duty to make reasonable adjustments is not the same for disabled employees and employees who are carers of disabled people.
If a disabled employee brings a claim then once an adjustment has been found to be reasonable, then a failure to carry it out cannot be justified by an employer at all.
However employers are not obliged to make reasonable adjustments under disability discrimination legislation for employees who bring associative claims as carers of disabled people.
The Equality Act 2010 provides that:
- Employers have a duty to make reasonable adjustments where a 'provision, practice or criterion' (PCP) of the employer puts a disabled employee or job applicant at a substantial disadvantage compared to others. The duty to make reasonable adjustments extends to job applicants as well as current staff. A failure to make reasonable adjustments will amount to disability discrimination.
- Employees are protected from associative discrimination where a non-disabled employee is subjected to direct discrimination or harassment on the grounds of their association with a disabled person. The Equality Act 2010 makes clear that the duty to make reasonable adjustments is owed to a 'disabled person'. There is nothing to suggest that the duty extends to making reasonable adjustments for an employee associated with a disabled person.
Several employees have brought claims against employers for failing to make reasonable adjustments based on associative discrimination, normally because the employee is caring for a disabled relative (Hainsworth v Ministry of Defence (2014)).
It now seems clear that associative discrimination does not extend to the duty to make reasonable adjustments (Cushnan v Norbrook Laboratories Ltd (2013)).
Although employers do not have to make such adjustments, some employers may choose to do so if the request is easy and cost effective to accommodate. However employees should now be deterred from suing employers for failure to make reasonable adjustments to meet their caring requirements. Employers should bear in mind that employees with similar caring responsibilities may make a request for flexible working and employers should ensure that such requests are considered reasonably.
Should employers treat disabled employees' absences differently in an absence policy?
How employers should treat disabled employees' absence in an absence policy gives rise to some interesting legal points. An employer’s duty to make reasonable adjustments for a disabled person does not mean an employer has to completely disregard the normal absence triggers in its absence policy.
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 people 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.
The leading case on disability and sickness absence policies is Griffiths v Secretary of State for Work and Pensions ( EWCA (Civ) 1265 10 December 2015, CA). The claimant worked for the Department of Work and Pensions (DWP) for 35 years as an administrative officer. In early 2011 she was absent for 62 continuous days with post-viral fatigue syndrome and fibromyalgia and this counted as disabled for the purposes of the Equality Act 2010.
The DWP had an attendance policy which comes into effect when absence levels reach eight working days of sickness absence in any twelve month period. Under the policy, formal action begins when an employee’s level of absence reaches this consideration or trigger point. However the policy allowed managers the discretion to change the point at which formal sickness absence proceedings were triggered.
The claimant brought a grievance and then claim for disability discrimination for failure to make reasonable adjustments, namely disregarding her previous absences and increasing the trigger point for the absence proceedings.
The Court of Appeal (CA) agreed with the employment tribunal that the proposed adjustments, including delaying the trigger point for absence proceedings, were not adjustments which this employer was expected to take. 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. The CA said that cases like this are quite difficult to analyse using the reasonable adjustments duty. Disabled employees who are subject to procedures and even dismissal for poor attendance may prefer to focus on claims for discrimination arising from disability under Section 15 of the Equality Act 2010.
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?
(The Court explained that it was not necessary to use the test adopted by the House of Lords in Lewisham London Borough Council v Malcolm  1 AC 1399 whereby the correct comparator for the claimant was a non-disabled employee with the same level of absence, to whom the same sanctions would have been applied.)
Key points for employers
- It is commercially sensible for employers and line managers to exercise some flexibility, compassion and discretion with disabled employees who require time off for sickness.
- If a disabled employee is has limited and occasional absences it may be appropriate to extend the trigger point in an absence policy and it may be unreasonable not to do so for some employees.
- If disabled employees are absent for longer extended periods then it may not be necessary to delay the trigger point. Disabled employees with long absences will generally find it difficult to win a reasonable adjustments claim.
- Employers do not always have to extend the time periods in absence policies before commencing formal action for all disabled persons with absence problems. Formal disciplinary or capability or attendance management procedures sometimes have to be used in cases of long term sickness absence, even for disabled employees.
- Employers should use common sense and apply processes to disabled employees carefully and fairly. Sometimes disabled employees will request reasonable adjustments and sometimes they will not.
- Employers will be able to use an objective justification defence to a claim of discrimination arising from a disability, depending on the extent of past absences and the medical evidence as to the prognosis and likely pattern of future absences.
- Employers should also remember that absence management procedures that involve trigger points may not be a substantial disadvantage to disabled workers so as to invoke the duty to make reasonable adjustments at all. However direct or indirect disability discrimination claims may still arise if employers do not consider the reason for the absence and apply discretion about when to initiate formal action for disability-related absences.
Is it disability discrimination for an employer to reduce pay in a situation related to ill health absence?
Yes, 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.
Under the Equality Act 2010 (the Act) the pay reduction may be 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.
In O'Hanlon v Commissioners for HM Revenue and Customs  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. 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, by reducing the employee's working hours and transferring her to a more convenient location, had taken reasonable steps to prevent any disadvantage. 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.
Even 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 - see Chief Constable of Avon and Somerset Constabulary v Dolan (unreported, EAT/0522/07/MAA 22 April 2008, EAT).
Can a disabled employee be dismissed on the grounds of ill health?
Yes, if an employee can no longer fulfill their duties because of their disability, 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.
Some of the key steps that should be taken are:
- The first step is for the employee to see a company doctor, 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 possible reasonable adjustments which could be made to facilitate the employee's return to work must be considered, including reduction of working hours, reallocation of duties, more time off.
- If the report indicates that the employee is not fit to do the 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 look for alternative work for the employee within the organisation.
- The Acas code of practice on disciplinary and grievance procedures and the organisation's own disciplinary, dismissal and grievance procedures should be followed with due consultation at the appropriate stages.
- Dismissal of the employee on notice will be appropriate only if there is no alternative available.
- If work is available which the employee would be capable of doing, then this should be offered to them in priority to other job applicants from an 'internal application race'.
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 Council 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 Council 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.
An older example of a case where the employer succeeded in defeating a disability discrimination claim after dismissing on the grounds of ill health is Collins v Home Office (unreported EWCA Civ 598, CA). An employee who was an insulin dependent diabetic started work with the Home Office in May 2000. The normal probationary period was 12 months. Concern arose about the extent of the employee’s absences and two extensions of her probationary period were granted. In August 2001 she was signed off work by her general practitioner with stress and depression. In the occupational health service report of January 2002 a phased return to work was recommended. In April the employee was sent a ‘minded to dismiss’ letter ‘on the grounds of failed probation due to unsatisfactory attendance’ and in May she was interviewed by the employer. In August the occupational health service made its second report, which indicated that she should be able to return in three to six months. In September the employer sent the report to the employee with a letter stating that her case would be reviewed and a decision made on her future employment with the employer. Her employment was subsequently terminated as from 25 October 2002 on the grounds that her attendance had been unsatisfactory. The employee presented complaints of disability discrimination and unfair dismissal to an employment tribunal.The Court of Appeal agreed with the employment tribunal, dismissing complaints of disability discrimination and unfair dismissal. The employer had acted reasonably throughout the long absence, during which the position had been discussed with the employee and the medical position had become clear.
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.
Employers should also be aware of the many issues surrounding long term sick leave and accrued holiday and recent cases such as Fraser v Southwest London St George's Mental Health Trust and KHS AG v Schulte.
What are the time limits for a disability discrimination claim?
A claim may be brought to an employment tribunal within three months from the date of the last discriminatory act.
The tribunal may consider a complaint outside that time limit if it considers it just and equitable to do so. It is highly likely that if the disability relates to communication difficulties, memory or ability to concentrate learn or understand the tribunal will be prepared to extend time.
See BUPA Care Homes v Cann; Spillet v Tesco Stores Ltd (2006) for an example of the the tribunal exercising the ‘just and equitable’ discretion to consider a disability discrimination claim presented after the normal three month time limit.
In cases involving a failure to make reasonable adjustments, special time limit difficulties can arise as the failure is continuous. It appears that acts or omissions which took place over three months before the presentation of a claim will normally be out of time regardless of the fact that the failure is continuing (Humphries v Chevler Packaging Ltd (2006)).
What compensation is available for disability discrimination?
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: How does the comparison work in disability discrimination claims?
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.
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.
The Act introduced the concept of 'discrimination arising from disability'. This attempts to stop employers from treating disabled employees detrimentally because of their disability and which cannot be objectively justified. The focus is on if the detrimental treatment is linked to the disability. This category of discrimination does not require reference to a comparator.
There is a lot of pre-Equality Act case law guidance available on the issue of comparators that was decided under the old Disability Discrimination Act (DDA).
The leading case under the DDA was London Borough of Lewisham v Malcolm (2008). The House of Lords held that a comparator in a disability-related claim is a non-disabled comparator with the same other abilities as a disabled person. For example, a disabled person who has been off sick for six months should be compared to a non-disabled person who has been off for six months.
Other cases then confirmed this was the correct test under the DDA, including Stockton-On-Tees Borough Council v Aylott (2010). The claimant had bipolar disorder and had problems at work, resulting in him making various complaints against colleagues for bullying and other matters. The employer investigated and rejected the complaints. After various further problems, an outburst and sickness-related absences, the employer suspended him and started a disciplinary investigation into his conduct. The investigation was stopped when the employee was hospitalised because of his mental illness. After a lengthy continued absence he was dismissed on the grounds of capability.
The Court of Appeal held that:
- the correct hypothetical comparator was a person who was off work for a similar number of days but who did not have the disability
- the characteristics of the employee’s disability should not be included in the hypothetical comparator for the purposes of determining a claim of direct disability discrimination
- there was direct discrimination because the claimant received less favourable treatment than others on the grounds of his mental disability, as evidenced by the council's stereotypical view of, and reactions to, mental illness
- the dismissal was not disability-related discrimination.
As a result of Malcolm and subsequent decisions which relied on it, the Equality Act has introduced the concept of discrimination arising from disability, described the concept of the appropriate comparator more clearly, and introduced a defence of justification. This should clear up points of confusion following the Malcolm decision.
Q: Is an employer vulnerable to disability discrimination claims if it does not accommodate an able bodied employee's need to care for a disabled family member?
This issue has been a complex one, however the Equality Act 2010 (the Act) introduced the concept of associative discrimination.
The Act now makes it clear that discrimination arises if an employer discriminates against an employee because of a protected characteristic, whether or not the employee themselves possess that protected characteristic.
Basically therefore, an employer who does not accommodate an able bodied employee’s need to care for a disabled family member will be liable to a disability discrimination claim. They may be vulnerable to a number of other claims as well. For example, if an employee has dependent disabled children or specified adults in need of care, then that employee will have a right to request flexible working or unpaid parental leave.
Under previous UK law carers of a disabled person who are treated less favourably were not addressed. However, in Coleman v Attridge Law (2008) the European Court of Justice (ECJ) ruled that the Equal Treatment Framework Directive 2000/78/EC does provide protection against what is known as associative discrimination (discrimination against those with disabled dependants on the grounds of their association with the disabled person). The case concerned a mother whose employer refused her request for flexible working to look after her disabled son.
To harmonise UK law with ECJ's ruling in Coleman v Attridge Law, the Act ensures that discrimination is prohibited where the treatment is linked to disability not just on grounds of the claimant having a disability themselves.
Q: Can an employer dismiss an employee for misconduct if they have a disability?
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 take great care to follow the usual dismissal procedures and those recommended by Acas Code of practice on disciplinary and grievance procedures (the Acas code).
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 that should be taken 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 the employer should also ask specific questions about the reasons for the misconduct and explain why that conduct is inappropriate.
- The employee should be given the opportunity to improve in the usual way.
- Dismissal of 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.
Which employers are exempt from the disability discrimination legislation?
There are very few exemptions from the Equality Act 2010. The Act makes express provisions prohibiting discrimination against employees, applicants, contract workers, police constables etc. It also contains special provisions to help ensure there is no discrimination within partnerships (including limited liability partnerships).
A business engaging workers through an agency must still comply with the provisions in respect of the agency workers. This is so even if a consultant is engaged through their own limited company (see Abbey Life Assurance Company Ltd v Tansell (2000). The 'end user' in a chain of contracts involving agency staff will be responsible for any acts of discrimination.
Members of the armed forces usually fall within an exempt category, although they have their own internal procedures which apply.
In a referendum on 23 June 2016 the UK voted to leave the EU. For information on what Brexit will possibly mean for employment law, including discrimination, read the blog by our Public Policy Advisor (Employer Relations).
We have also set up a resource hub on our website where relevant resources and details of our ‘Brexit’ activities will be published.
Discrimination claims and fees
The introduction of employment tribunal fees to issue and hear claims and Acas early conciliation has affected the number of discrimination claims which have significantly decreased. The Scottish Government has pledged to scrap the fees under new powers conferred on it in the Scotland Bill. Whether the fee system in England and Wales could be reformed has been the subject of extensive litigation and consultation. For more information see the Q&A What are the fees and costs which can be payable in the employment tribunal? in our Tribunal claims, settlement and compromise Q&As.
Q: Does an overweight employee fall into the category of a disabled person?
There is no general principle in UK or EU law which includes discrimination on grounds of obesity as a ground of unlawful discrimination on its own. However any individual case of an obese employee will probably fall within the Equality Act 2010 protections for disability. An overweight employee probably falls into the category of a disabled person 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 that needs to be considered, rather than the underlying condition itself.
The official government guidance uses an example of a woman who has obesity which gives 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 will definitely fall within the definition of disabled.
A well-publicised case illustrating the way the law operates is an EU case, Kaltoft v Billund Kommune (unreported, Case C-354/13 18 December 2014, ECJ), in which a Danish child minder weighing over 25 stone claimed that that he was 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 child minder’s BMI was 54. The employer said that the child minder 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.
During the child minder's employment he had always been obese and he argued that obesity is a form of disability and so he should have received protection from dismissal.
The European Court of Justice (ECJ) followed the Advocate General's opinion which said that there is no general principle under EU law which outlaws discrimination on the grounds of obesity, but that obesity could fall within the concept of ‘disability’. This is especially the case when the obese person was hindered by their condition from taking full and effective participation in their professional life on an equal basis with others. The ECJ therefore confirmed that obesity can fall within the concept of ‘disability’ within the meaning of the Equal Treatment Framework Directive. The ECJ commented that this would arise in particular if the obesity of the worker and consequential conditions reduced their mobility or prevented that person from carrying out work or caused discomfort when working. However it was for the national court Danish to determine whether the claimant's obesity falls within the definition of ‘disability’ in this case.
The Kaltoft decision was confirmed by a Northern Ireland decision, Bickerstaff v Butcher (unreported,  92/14 FET), which upheld a claim for harassment by an obese employee.
The claimant was morbidly obese with a BMI of 48.5. He was harassed by a number of colleagues, particularly one who harassed him because of his weight on an almost daily basis.
The claimant raised a grievance after being subjected to comments including:
- that he was a 'fat bastard', and
- he was 'so fat, he wouldn't feel a knife being stuck into him'.
The main perpetrator admitted to using foul language against the claimant, but said that he thought that this was banter. The claimant settled disability discrimination claims against the employer and other colleagues, but the claim for harassment relating to his disability against the main perpetrator proceeded to a tribunal hearing.
The industrial tribunal found that the claimant was disabled by his obesity and that he had been harassed for a reason relating to that disability.
Following the Kaltoft decision, the tribunal was satisfied that the claimant was disabled by a combination of his morbid obesity and gout conditions. He had knee, joint and back pains, sleep apnoea, frequent tiredness and loss of concentration, all of which were directly linked to his weight.
In an earlier important UK case, Walker v SITA Information Networking Computing Ltd (unreported, UKEAT/0097/12 8 February 2013, EAT), an employee weighing over 21 stone brought a discrimination claim against his employer 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. His symptoms which affected his daily living, included pains in his head, abdomen, leg, feet, constant fatigue, and poor concentration and memory.
The Employment Appeal Tribunal held that the claimant was disabled, stating that:
- Obesity is not in itself a 'disability' for discrimination law purposes, whereas the later cases suggest that it is.
- An employer should not focus on the underlying cause of the impairment (for example, obesity), but on whether there is actually an impairment.
- Obese employees who suffer from physical or mental impairments (which have a substantial and long-term effect on the employee’s ability to carry out normal day-to-day activities) can be disabled.
- Obesity may make it more likely that an individual has impairments sufficient to bring them within the definition of disability.
Points for employers
The above cases have therefore confirmed that obesity is a potential disability and such employees can definitely be classed as disabled and be entitled to protection from discrimination.
Therefore, obesity might be a disability if:
- the consequences of the obesity (such as heart disease) makes the job more difficult or demanding
- the resulting conditions are severe, for example, problems with mobility, endurance and mood - this may produce an impact which amounts to a disability but mere obesity on its own with no consequences is insufficient.
It appears that mere obesity on its own with no consequences is insufficient. To be protected, the obesity of the worker would entail 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 is irrelevant whether the obesity was due to a metabolic physical problem or a psychological problem. The causes of disability are irrelevant.
Employers will be vicariously liable for the acts of their employees if they have not taken reasonable steps to prevent discriminatory activity against the obese in their workplaces. 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.
So employers should be alert to the issues of obesity in the work place. Obviously, assuming that all obese employees are disabled could lead to a claim of discrimination by perception. However the need to make reasonable adjustments will apply even in cases where an employee’s medical condition stems from obesity. Employers may not know if an employee is obese and what measures to take. However they should be tactful and not make assumptions about the needs of an obese worker, as not all obese employees have health problems. Employers who currently carry out risk assessments should make reasonable adjustments for obese employees if they have impairments affecting their abilities.
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Disability Confident employer
The CIPD is a Disability Confident employer. 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.