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Daniel Northall rounds up developments in disability discrimination from 2013

Daniel Northall

Definition of Employee

X v Mid Sussex Citizens Advice
Bureau
[2013] IRLR 146 (Supreme Court)

The facts

The Claimant was a volunteer adviser
for the Mid Sussex Citizens Advice Bureau (“the CAB”) from May 2006. At her
interview it had been explained that there would be no binding legal contract
between her and the CAB. She signed a volunteer agreement headed: “This
agreement is binding in honour only and is not a contract of employment or
legally binding”. She brought proceedings alleging that she had been asked to
cease her work on grounds of her disability. Her claim was dismissed by the
Employment Tribunal because no legally binding contract had been entered into
between the parties. She was a pure volunteer,

The Claimant appealed, submitting
that the EC Equal Treatment Framework Directive 2000/78, which the Act
implemented, was intended to cover volunteers and that, in those circumstances,
the Act should have been read as affording her the requisite protection.

The judgment

The EC Equal Treatment Framework
Directive did not extend to cover voluntary activity.

Comment

The protection of volunteers would
have extended considerably the scope of the EqA in a manner which would have
placed a great burden on third sector organisations in particular. The Supreme
Court was clear that no such protection was intended by the Directive.

However, the judgment is not a
substitute for a proper analysis of the contractual position. Only if the
individual is truly a volunteer does the judgment apply.

Definition of Disability

HK Danmark, acting on behalf of Ring
v Dansk almennyttigt Boligselskab
[2013] IRLR 571 (CJEU)

The facts

Danish law allows an employer to
terminate an employment contract with a reduced one month notice period if the
employee has been on paid sick leave for 120 days during the previous 12
months. A Danish trade union brought actions on behalf of Ms Ring and Ms
Skouboe Werge, who were dismissed under this provision, claiming that the
reduced notice period under Danish law should not apply where the absence
results from a disability or from a failure to make reasonable adjustments. The
trade union argued that because they were suffering from a disability (Ms Ring
had whiplash and Ms Skouboe a back disorder and osteoarthritis), the short
notice period could therefore not apply to them; and, in addition, their employers
were required to offer them a reduction in working hours. Ms Ring and Ms
Skouboe Werge’s employers denied that their conditions amounted to a
disability.

The judgment

The CJEU noted that the EU had
signed up to the UN Convention on the Rights of Persons with Disabilities
(CRPD) since its last judgment on the meaning of disability (Chacón Navas) and
that the Directive must therefore be read in light of the CRPD. [It should be
noted that the Directive itself does not contain a definition of disability].

The CJEU, applying CRPD, stated that
the concept of “disability” for the purposes of the Directive “must be
understood as referring to a limitation which results in particular from a
physical, mental or psychological impairment which in interaction with various
barriers may hinder the full and effective participation of the person
concerned in professional life on an equal basis with other workers.”

Comment

The CJEU focussed on the effect of
an impairment on an individual’s professional life in light of the
statement of disability contained in the CRPD. This is to be contrasted with
the EqA (and its predecessor the DDA) which defined disability with reference
to normal day to day activities. It has long been established that work
activities may amount to normal day to day activities, but the two are not
synonymous, Some work activities do not amount to normal day to day activities
and vice-versa. Since the EqA must be read consistently with the Directive
which in turn, so the CJEU has held, should be read consistently with the CRPD,
is there now a tension between the EqA and the Directive?

The Burden of Proof

IPC Media Ltd v Millar [2013] IRLR
707 (EAT)

The Facts

Ingrid Millar was a journalist
employed initially as features editor of Chat magazine. She developed
serious osteoarthritis of the knees, and required time off for operations. The
team at Chat was merged with that at another magazine and Ms Millar’s
role was placed at risk of redundancy. Following consultation she was
ultimately made redundant. She complained to an Employment Tribunal that she
was not notified of the vacant positions of associate editor and group
associate head of features because of her previous disability related absences.
She brought a claim pursuant to s.15 EqA and was successful before the
Tribunal.

The judgment

As with other species of
discrimination, an act or omission can occur “because of” a proscribed factor
as long as that factor operates on the mind of the putative discriminator
(consciously or subconsciously) to a significant extent. The starting-point in
a case which depends on the thought processes, conscious or unconscious, of the
putative discriminator, is to identify the individual(s) responsible for the
act or omission in question. The facts did not justify an inference that the
person responsible knew of the claimant’s absences. The tribunal had not made
an explicit finding, by inference or otherwise, about what that person knew. In
fact, it did not directly address the question at all.

Comment

It is a further restatement that the
first stage of the burden of proof is not so easy an obstacle to overcome as
many claimants (and some Tribunals) think.

Tribunals cannot avoid undertaking
some analysis of the subjective thought processes of an alleged discriminator,
If they did not know of a proscribed factor, it cannot have been influential
and as such there cannot have been any act of unlawful discrimination.

Provision, Criterion or Practice

Nottingham City Council v HarveyUKEAT/0032/12/JOJ (EAT)

The facts

Mr Harvey suffered from depression
which qualified as a disability. He undertook a phased return to work following
a period of absence. During this time he left work early on three occasions,
but submitted time sheets indicating he had worked his full hours for those
days. He was dismissed as a consequence.

The Tribunal found that the employer
had failed to make a reasonable adjustment in that it applied a PCP (namely the
disciplinary procedures) which placed Mr Harvey at a substantial disadvantage.
It found that the employer could reasonably have made adjustments to the
process by undertaking reasonable investigations, by considering personal
mitigation and by not dismissing him.

The judgment

The EAT found that the Tribunal had
erred and in so doing made some observations as to the essence of a PCP:

In this case it is common ground
that there was no provision that the employer made nor criterion which the
employer applied that could be called into question; the issue was the practice
of the employer. Although the Act does not define “provision, criterion or
practice” and the Disability Rights Commission’s Code of Practice: Employment
and Occupation 2004 deals with the meaning of provisions, criteria and
practices by saying not what they consist of but what they include (see para
5.8), and although those words are to be construed liberally, bearing in mind
that the purpose of the statute is to eliminate discrimination against those
who suffer from a disability, absent provision or criterion there still has to
be something that can qualify as a practice. “Practice” has something of the
element of repetition about it. It is, if it relates to a procedure, something
that is applicable to others than the person suffering the disability. Indeed,
if that were not the case, it would be difficult to see where the disadvantage
comes in, because disadvantage has to be by reference to a comparator, and the
comparator must be someone to whom either in reality or in theory the alleged
practice would also apply. These points are to be emphasised by the wording of
the 1995 Act itself in its original form, where certain steps had been
identified as falling within the scope to make reasonable adjustment, all of
which, so far as practice might be concerned, would relate to matters of more
general application than simply to the individual person concerned.

(para.18)

Comment

Many poorly thought out claims for
reasonable adjustments argue that the PCP complained of was a particular act
vis a vis the employee and the adjustment would be not doing it. In light of
this decision, such claims are likely to fail unless the act falls as part of a
wider practice which was, or would be, applied to other employees.

Knowledge of Disability

Gallop v Newport City Council [2013]
EWCA 1583 (Court of Appeal)

The facts

Mr Gallop was a technical
officer working for Newport City
Council. He had shown some signs of depression such as, stress, lack of sleep
and appetite, tearfulness and difficulty in concentrating. Over the course of
around 3 years, these symptoms continued and were the cause of absences from
work. He was referred to Occupational Health for assessment. Each OH report
concluded that Mr Gallop was not a disabled person within the meaning of the
DDA (which then applied). The ET and EAT held that the employer was entitled to
rely on the reports conclusively in demonstrating that it did not have
knowledge of Mr Gallop’s disability even though he was later found to meet the
definition.

The judgment

As to the value of the OH reports in
that case:

Their opinions amounted to no more
than assertions of their view that the DDA did not apply to Mr Gallop, or that
he was not ‘covered’ by it or words to that effect. No supporting reasoning was
provided. As the opinions were those of doctors, not lawyers, one might expect
them to have been focussed on whether, from the medical perspective, the three
elements of section 1 were or were not satisfied. Since, however, OH made no
reference to such elements, neither Newport nor the ET could have had any idea
whether OH considered (i) that Mr Gallop had no relevant physical or mental
impairment at all; or (ii) that he did, but its adverse effect on his ability
to carry out normal day-to-day duties was neither substantial nor long-term, or
(iii) that he did, but it had no effect on his ability to carry out such
duties. OH’s opinion was, with respect, worthless. For reasons indicated,
Newport had to form its own judgment on whether Mr Gallop was or was not a
disabled person; and OH’s views on that topic were of no assistance to them. (
Para.40)

As to the employer’s responsibility
in such circumstances:

The problem with certain types of
disability, or claimed disability, is that it is only when eventually the ET
rules on the question that it is known whether the claimant was in fact a
disabled person. In the meantime, however, the responsible employer has to make
his own judgment as to whether the employee is or is not disabled. In making
that judgment, the employer will rightly want assistance and guidance from
occupational health or other medical advisers.

That assistance and guidance may be
to the effect that the employee is a disabled person; and, unless the employer
has good reason to disagree with the basis of such advice, he will ordinarily
respect it in his dealings with the employee. In other cases, the guidance may
be that the opinion of the adviser is that the employee is not a disabled
person. In such cases, the employer must not forget that it is still he, the
employer, who has to make the factual judgment as to whether the employee is or
is not disabled: he cannot simply rubber stamp the adviser’s opinion that he is
not.

(paras.42 and 43)

The CA also gave some guidance on
what OH reports should ideally address:

I add that this case illustrates the
need for the employer, when seeking outside advice from clinicians, not simply
to ask in general terms whether the employee is a disabled person within the
meaning of the legislation but to pose specific practical questions directed to
the particular circumstances of the putative disability. The answers to such
questions will then provide real assistance to the employer in forming his
judgment as to whether the criteria for disability are satisfied.

(para.44)

Comment

Employers cannot blindly rely upon
the contents of an OH report in denying it knew that an employee’s impairment
amounted to a disability. Much depends upon the quality of the report itself
and the questions which it specifically addresses.

The judgment should be a much needed
reminder to OH practitioners that they need to earn their corn. Bland
statements are inadequate and nor should they sit on the fence in expressing
their professional opinion, unless the circumstances are genuinely borderline.
The judgment is also a reminder to employers to be specific in their referrals
to OH. A practitioner should be required to answer the specific questions which
lie at the heart of the definition of disability.

Reasonable Adjustments

HMRC v Whiteley UKEAT/0581/12/MC
(EAT)

The facts

Mrs Whiteley suffered from asthma,
which qualified as a disability. Her employer applied an attendance management
policy which had a ‘consideration point’ of 10 days’ absence in any rolling 12
month period. In 2010 the employer reviewed Mrs Whiteley’s attendance on the
ground that she had breached her consideration point. She had been absent from work for 15 days up
to and including 15 October 2010; 1 day was due to an unrelated condition and
14 days were due to viral infections and a chest infection. The employer discounted
3 days’ absence but issued her with a warning nonetheless.

Mrs Whiteley complained that her
employer had failed to make reasonable adjustments as it should have discounted
a greater number of her absences, which would have avoided her warning. She
argued that her absences were caused or prolonged by her underlying asthma. For
the purpose of the hearing her union had obtained medical evidence and, on the
strength of this evidence, the Tribunal upheld her claim. HMRC appealed.

The judgment

The EAT overturned the Tribunal’s
decision and remitted it for reconsideration. It found that the Tribunal had
misinterpreted the medical evidence before it. However, the EAT also gave
useful guidance on the approach an employer may take in this situation:

There are, in principle, at least
two possible approaches to making allowances for absences caused by a
disability that interacts with other ordinary ailments. One is to look in detail and with care and,
if necessary, with expert evidence at the periods of absence under review and
to attempt to analyse with precision what was attributable to disability and
what was not. The alternative approach,
which we anticipate will be of greater attraction to an employer, is to ask and
answer with proper information the question: what sort of periods of absence
would someone suffering from the disability reasonably be expected to have over
the course of an average year due to her disability?

(para.14)

Comment

The judgment gives valuable guidance
in the often vexed situation of managing absence which may or may not be
related to a disability. The latter approach recommended by the EAT has the
benefit of not requiring an investigation into the medical causation of each
absence. Rather, the employer can apply a ‘rule of thumb’ provided that
conclusion is based on proper evidence.

Secretary of State for Work and
Pensions v Higgins
UKEAT/0579/12/DM (EAT)

The facts

Mr Higgins worked as an
administrative officer in a benefits delivery centre for the DWP. In June 2009 he
began a long period of absence due to a heart condition. His condition
qualified as a disability. In August 2010 he presented a fit note from his GP
recommending a phased return to work over a 13 week period.

In accordance with the fit note, Mr
Higgins’ employer proposed a phased return over a 13 week period. Mr Higgins
proposed a phased return over a 26 week period. He refused to return to work
until his employer agreed an extension to the 13 week period. It did not and Mr
Higgins was dismissed.

The Tribunal upheld Mr Higgins’
complaint of disability discrimination. It found that the failure to agree an
extension to the 13 week phased return period was a failure to make a
reasonable adjustment.

The judgment

The Tribunal had erred in its
identification of the PCP. The correct PCP should have been the requirement to
work his full contractual hours. It was this requirement which caused Mr
Higgins a disadvantage by virtue of his disability.

Put in this light, it was plain that
the proposal of a 13 week phased return alleviated the disadvantage at that
time. The Tribunal had failed to identify what further disadvantage an
extension to the 13 week period would have avoided or the extent to which the
disadvantage would have been avoided.

The EAT remarked that:

Employers will often be presented
with “fit notes” which last a certain length of time and which request
consideration of reduced hours during that time. If the employer grants the reduced hours
which the employee says he is capable of working, we do not see why it will
generally also be necessary for the employer to give some explicit guarantee of
future review. If, at the end of the
period, the employee continues to be under a substantial disadvantage, the duty
to make an adjustment will still be applicable and can be judged in the
circumstances at that time.

(para.56)

Comment

The decision is a further reminder
to Tribunals that the duty to make reasonable adjustments must be analysed
stage by stage. Further, the duty does not simply place upon an employer a
requirement to act reasonably in all the circumstances.

The employer is entitled to act
consistently with the medical advice before it, in the absence of evidence of
some further disadvantage. If an employer offers the recommended period of
phased return, it cannot be criticised for failing to offer some greater
period. It may well be that a further period of rehabilitation is required, but
that can only be assessed once the original period is coming to an end.

Frustration of Contract

Warner v Armfield Retail &
Leisure Ltd
UKEAT/0376/12 (EAT)

The facts

Mr Warner was employed as a site
manager until he suffered a severe stroke in February 2010. He began a period
of prolonged sickness absence and moved away from where his workplace was
based. He gave no indication of when he might be able to return to work. His
employer terminated his employment by letter in January 2011 and without prior
warning. Mr Warner was examined by an occupational health physician in October
2011 who confirmed that he was unable to return to work and was unlikely to
return in the foreseeable future.

The Tribunal dismissed Mr Warner’s
claims of unfair dismissal and disability discrimination. It accepted the
employer’s arguments that the contract was frustrated. Mr Warner appealed.

The judgment

The EAT did not feel that the
application of the doctrine of frustration to contracts of employment was
‘beyond question’. Nonetheless, it felt bound by the earlier judgment of the CA
to that effect in Notcutt.

However, grafting the requirements
of disability discrimination legislation upon the common law doctrine of
frustration meant that a contract of employment could not be frustrated unless
and until the duty to make reasonable adjustments had been complied with. On
the facts of the case before it, the EAT upheld the Tribunals earlier findings.

Comment

Employers rarely deploy frustration
of contract as an argument in the Tribunal and for good reason, Although a
finding of frustration has the benefit of avoiding a potential dismissal (a
frustrated contract does not amount to a dismissal for the purpose of s.95 ERA)
the argument is very difficult to establish. It is even more difficult in
circumstances involving a disabled employee where the duty to make adjustments
has arisen. Employers should be especially careful before using frustration to
bring to an end the employment of individuals who have been on long term
sickness absence.

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