Employment law bulletin: disability discrimination

Our employment law expert Lynsey Howes looks at three decisions all concerning disability, knowledge of disability, disability discrimination and reasonable adjustments.

Knowledge of disability

The decision in Seccombe v Reed considers whether it would be perverse for an Employment Tribunal to conclude that an employer did not know of a disability and did not have imputed knowledge of the disability either.

The circumstances of the case were that the Claimant was dismissed as a consequence of his poor performance. The Claimant asserted that he was a disabled person and the dismissal was unfair as a consequence. The Company stated that it had no knowledge of any disability and could not be expected to have such knowledge on the facts.

The Claimant had prior to his employment suffered two periods of anxiety and depression. On commencement of employment, he did not disclose any mental health impairment. During the employment he endured a traumatic experience and spent a period of time off work. Upon returning to work his managers thought that he was fully recovered.

During evidence at the hearing, no medical evidence was produced which supported his assertion that he was a disabled person.

The EAT concluded that the Claimant was not a disabled person as he had failed to satisfy the definition of disability within the meaning of the Equality, namely that he was suffering from a mental or physical impairment which had a long‐term and substantial adverse effect on his ability to carry out normal day to day activities. Particularly the Claimant had failed to show that his condition was long‐term. The EAT found that the Employment Tribunal had been entitled to find that the Claimant was not disabled and on the facts the Company had no knowledge of such disability.

It is important to note that the long‐term aspect relates not to the impairment itself but to the effect of that impairment on the disabled person. The EAT also reiterated that in the absence of medical evidence in support it is important to listen to what the person themselves says about the impairment.

This is a complex area and one which has many strands, but this decision reiterates and summaries helpfully many of the key issues which employers need to consider when dealing with the issue of disability.

Disability discrimination

This decision concerns the exercise of a discretion in an absence management policy. Many policies contain a discretion, whether about pay or proceeding with a capability process, but this decision highlights the pitfalls of exercising such discretion when dealing with a disabled person.

The EAT was asked to decide whether a disabled person could be put at a substantial disadvantage by a policy which contains such a discretion.

The EAT made a finding that the Employment Tribunal had erred in law in concluding that the provision criterion or practice (PCP) asserted by the Claimant was simply the terms of the absence management policy, rather than her full assertion that it was the application of that policy to her which was also part of the PCP.

The Claimant was clear that she was at a substantial disadvantage because as a disabled person she was more likely to have sickness absence that a non‐disabled person. The EAT concluded that the Employment Tribunal could not simply dismiss this element of the PCP by looking at the policy and concluding that as it had extra discretions for disabled persons that the Claimant did not suffer a substantial disadvantage.

However, in a twist the EAT stated that the correct question that should have been asked was not whether the policy contained extra discretions to protect disabled persons, but whether the Company had taken all reasonable steps to ensure that the Claimant did not suffer the disadvantage.

In answering this question and looking at the steps taken by the Company the EAT concluded that Company had taken all reasonable steps and the Claimant failing to enter fully into the process adopted by the Company had not assisted her.

The appeal was dismissed. The Claimant had succeeded in establishing the correct PCP, but had not been able to show that she had actually suffered the disadvantage alleged as a consequence.

This is a useful decision highlighting the need to ensure that policies are applied in such a way that every employee is placed on an equal footing. In this instance despite the policy creating a disadvantage, the impact of it had been negated by a careful application of steps to ensure that the disabled person was treated fairly.

Disability and reasonable adjustments

Ms. Aleem a teacher had become ill and unable to continue with her teaching duties. She took over a cover role, which attracted a lower rate of pay. Initially Ms. Aleem was paid at her normal rate of pay, rather than the applicable rate for the role that she was undertaking. This went on for three months.

At the end of the three months period and upon acceptance of the role on a permanent basis the Respondent reduced Ms. Aleem’s salary to the rate for the role.

Ms. Aleem brought a claim, asserting that it was a reasonable adjustment to continue to pay her at her old rate of pay.

The EAT disagreed, applying the principles in a previous decision of O’Hanlon, it concluded that the school had been very clear that the protected period of pay was only temporary and for the trail period. It was not a permanent measure. The EAT was also found that on the evidence Ms. Aleem was unlikely to return to her old role or be capable of work at the higher level, where this was the conclusion, it was not a reasonable adjustment to continue to pay her at the higher protected rate.

And finally…

It is always interesting to analyse a particular area of law and disability discrimination is so multi‐factored that it is important to understand the many issues which can arise.

As always if you have questions relating to these decisions please call.

Bye for now.

Lynsey and the team.

To contact Lynsey or join the employment law mailing list, please email LHowes@hamers.com