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Daniel Northall rounds up developments in disability discrimination from the first half of 2014

Daniel Northall  
Definition
of disability

Z v A Government Department [2014] IRLR 563

The facts

Ms Z was employed in Ireland as a teacher
on terms determined by an Irish government department. Those terms entitled Ms
Z to paid periods of maternity and adoption leave.

Ms Z had a rare condition which meant that,
although fertile, she did not have a uterus capable of bearing a child through
pregnancy. In 2010 she had a child via a surrogate in California. The child was
the genetic offspring of Ms Z and her partner, having been created by their
respective gametes and implanted into the surrogate.

Since Ms Z had not undergone a period of
pregnancy, she could not satisfy the requirements under domestic legislation
for taking maternity leave. Nor did she qualify for adoption leave as she had
not adopted the child of the surrogate.

Aside from allegations of sex
discrimination, Ms Z alleged that the refusal to provide paid leave to a person
who was unable to bear a child amounted to disability discrimination under the
Equal Treatment Framework Directive 2000/78.

The judgment

Directive 2000/78 does not define
disability. However, the United Nations Convention on the Rights of Persons
with Disabilities, which contains various descriptions of disability as a
concept, had been approved on behalf of the European Community.

The primacy of international agreements
concluded by the European Union over instruments of secondary law means that
those instruments must as far as possible be interpreted in a manner which is
consistent with those agreements.

Consequently, disability within the meaning
of the Directive must be taken to mean that which is set out in the UN
Convention; namely “a limitation which
results in particular from long-term physical, mental or psychological
impairments 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”.

The inability to have a child by
conventional means was not a hindrance upon Ms Z’s participation in
professional life and so she was not disabled for the purpose of the Directive.

Comment

In an earlier update, I commented on the
divergence between the domestic and European definitions of disability brought
about by the decision of the CJEU in HK Danmark [2013] IRLR 571. Section
6 of the Equality Act 2010 is focused upon the impact an impairment has on normal day to day activities. The
Directive, as now interpreted in light of the UN Convention, focuses instead
upon the impact on an individual’s professional life. As we know, work
activities may amount to normal day to day activities and vice-versa, but the
two concepts are not synonymous.

Following its decision in Z,
the gulf between the domestic and European definitions of disability is
arguably now wider. In finding that Ms Z was not a disabled person, the CJEU
considered only the effect of Ms Z’s condition on her ability to participate in
professional life. All other effects were disregarded.

Had the facts of Z been applied to Section
6 of the Equality Act the outcome would probably have been the same. Childbirth
may be a normal activity but it could not be described as a day to day
activity. Nonetheless, one can conceive of adverse effects on work activities
which do not amount to adverse effects on normal day to day activities.

Another question which arises is how
“professional life” is to be defined. Is it by reference to the individual’s
particular job, or to a broader notion of “professional life” in society as a
whole? For example, if a particular employee has an impairment which meant he
could not drive, but his job did not involve driving and he could walk to work
without difficulty, would this be a hindrance on his full and effective
participation in professional life?

There are presently no domestic authorities
which seek to analyse the differences, if any, between Directive 2000/78 and
Section 6 of the Equality Act 2010 in their reliance on “professional life” on
the one hand and “normal day to day activities” on the other, but it is surely
only a matter of time.

Kaltoft v the Municipality of Billund Case C-354/13

The facts

Mr Kaltoft was employed
as a childminder with a Local Authority in Denmark. He had undertaken this role
for some 15 years and had been obese throughout his period of employment. His
attempts to lose weight, including some sponsored by his employer, had been
unsuccessful. His employment was terminated on the grounds of performance when
his employer alleged he was unable to fulfil many aspects of his role, due to
his size.

The Judgment

There has been no
judgment from the CJEU as of yet. However, the Advocate-General’s Opinion
published on 17 July 2014 indicated that obesity may qualify as a disability where obesity has reached a degree
which “plainly hinders full participation
in professional life on an equal footing with other employees due to the
physical and/ or psychological limitations that it entails
”.

Comment

The opinion of the
Advocate-General has created a tidal wave of comment and criticism from parties
fearful that obese workers will now be protected under discrimination
legislation.

The response has been
a complete overreaction. The AG’s Opinion effectively amounts to the
proposition that an obese person will be a disabled person if they meet the
definition of disability. In that sense, it is unremarkable.

What really drives the
criticism is the unspoken belief that obese people are to blame for being obese
and are therefore less deserving of support and assistance in the workplace.
Firstly, that may not be true. Secondly, and more fundamentally, the
discrimination provisions, both domestically and at European level, do not
require an analysis of the blameworthiness of an individual having a particular
impairment. So a person who was severely injured while drink driving may be
just as much a disabled person as someone who has suffered a disabling
condition from birth.

The Equality Act
stipulates those conditions which automatically disqualify as a disability
(visual impairments which are corrected by spectacles is the most everyday
example). Obesity is not a disqualified condition and there is no other basis
for arguing that impairments caused by obesity should be excluded from
protection under the Act.

The legislation is concerned
principally with effect, not cause. If obesity results in impairments causing a
substantial adverse effect on normal day to day activities which is long term, that person will be
disabled for the purposes of the Act.

Hutchison 3G UK Ltd v Edwards
UKEAT/0467/13/DM

The facts

Mr Edwards was employed as a Sales
Associate at one of Three’s stores in Newcastle. He suffered from
Poland syndrome: he had been born with his
entire major left pectoral chest muscle missing, along with the sternal head on
the left side of his chest and two ribs. It resulted in his having a noticeable
asymmetry in the appearance of his chest.

Mr Edwards complained
that he was caused embarrassment as a result of having to wear a new polo shirt
at work. He also alleged that his manager then publically harassed him. The
matter came before an employment tribunal to determine whether he was a
disabled person within the meaning of s.6 of the Equality Act 2010.

The Tribunal found
that the condition resulted in a severe disfigurement which of itself qualified
Mr Edwards as a disabled person by virtue of Schedule 1 to the Act. The
Tribunal also went on to find that the condition amounted to a physical
impairment: it had a substantial adverse effect on normal day to day activities
which was long term. The employer appealed both findings.

The judgment

In assessing the
severity of a disfigurement, the Tribunal is entitled to take into account as a
relevant factor the impact the disfigurement has on the Claimant; for example,
the steps he takes to disguise the disfigurement from others.

The Tribunal had
before it a description of the disfigurement from the Claimant himself and in a
GP’s report. The Tribunal was not obliged to carry out its own visual
examination of the Claimant or to inspect photographic evidence. It must be
right that Tribunals display a degree of sensitivity in assessing the severity
of disfigurement in cases where the Claimant has gone to lengths to conceal it.

The Tribunal’s finding
that the disfigurement amounted to a physical impairment which had a
substantial adverse effect on normal day to day activities was based on
permissible findings of fact and it had due regard to the Claimant’s ability to undertake normal day to day
activities.

Comment

This is a comparatively
rare case of a deemed disability by virtue of a severe disfigurement. The
decision is important because it confirms that the severity of a disfigurement
is not simply a product of its physical appearance. The Tribunal is entitled to
have regard to the effect the disfigurement has upon a Claimant’s daily life.

The judgment also
suggests that the Tribunal’s assessment of the appearance of the disfigurement
is not conclusive, nor even important, provided the nature of the disfigurement
is adequately evidenced from other sources.

Of course, a
disfigurement’s appearance is still significant in determining its severity. Mr
Edwards’ daily life was affected only because of his perception of his chest’s
appearance and the response it would provoke in others. His perception was
reasonable based on his past experiences.

 

Associative
discrimination

Hainsworth v Ministry of Defence [2014] EWCA Civ 763

The facts

Ms Hainsworth was employed by the MoD as an
Inclusion Support Development Teacher. She served as a civilian employee
attached to the British armed forces and was based within the Paderborn
Garrison in Germany. Her daughter had Down’s syndrome and was a disabled person
for the purpose of s.6 of the Equality Act but she was not herself disabled.

Through a third party agency, the MoD
provided education and training for the children of servicemen and women and
civilian personnel serving away from the United Kingdom. However, there was no
provision for children with specialist needs. By reason of her disability, Ms
Hainsworth’s daughter could not be schooled in Germany by the MoD.

Consequently, she submitted a formal
request to be transferred back to the UK and this was rejected. She alleged
that the failure to allow her to transfer to the UK amounted to a failure to
make a reasonable adjustment.

It was conceded on her behalf that a
literal interpretation of the Equality Act did not support her argument.
Nonetheless, the Act should be read consistently with Article 5 of Directive
2000/78/EC which, it was argued, did require an accommodation to be made for
those employees associated with disabled persons.

The judgment

Article 5 did not require the extension of
the duty to make reasonable adjustments to employees who were associated with
disabled persons. The “obvious and entire focus” of Article 5 was upon
provisions to be made by an employer for his disabled employees. Nor did the
decision of the CJEU in Coleman v Attridge Law [2008] IRLR 722provide any support for the argument. On the contrary, the Court in that case
specifically remarked that Article 5 applied only to disabled people. No
reference to the CJEU was required as the point was clear.

Comment

It is plain through a combined reading of
Section 20 of the Equality Act and paragraph 5 of Schedule 8 to the Act that
the duty to make adjustments extends only to disabled employees of the
employer. Nonetheless, employers are frequently faced with employees who request
some accommodation to be made to their working conditions due to their
association with a disabled person. A typical example would be an employee who
has a disabled child and requires additional time off to provide support or to
attend medical appointments.

The judgment in Hainsworth puts the
position beyond any doubt (if any existed at all). Provided the employee in
this scenario is treated consistently with other employees, the Equality Act
does not oblige an employer to provide any additional accommodation.

 

Case
Management

In March of this year, the outgoing
President of the Employment Tribunals issued Presidential Guidance on General
Case Management.

The guidance can be found here:

http://www.justice.gov.uk/downloads/tribunals/employment/rules-legislation/presidential-guidance-general-case-management.pdf

The guidance contains a section on the
issue of disability and at paragraph 11 it sets out a helpful and user-friendly
description of the process of proving disability.

It gives an insight into a tribunal’s
likely attitude to the evidence required to prove disability and so is an
important reference in the event a dispute arises between the parties as to how
disability should be evidenced.

The guidance confirms the trend away from
obtaining formal expert medical evidence at the first stage of proving
disability. Rather, a claimant will be expected to produce such medical
evidence (such as GP records) as they already possess and disclose it to the
respondent along with a statement of effect. It will then be for the respondent
to decide whether disability is still disputed.

The proper case management of determining
the issue if disability, including the evidence required and who should pay for
it, was considered by the EAT in City Facilities Management (UK) Ltd v LingUKEAT/0396/13.

The facts

City Facilities Management provided on-site
cleaning services to clients, including Asda. Mrs Ling was employed by City as
an “Asda Ace Janitor”. She went off sick in February 2012 due to depression and
anxiety and was dismissed on grounds of capability on 5 October 2012. She
alleged that her dismissal amounted to disability discrimination.

At the case management stage, directions
were given for Mrs Ling to disclose her GP records and to produce a statement
of effect. The matter then came before the Employment Tribunal again to decide
whether Mrs Ling was a disabled person within the meaning of the Act.

The Employment Judge declined to determine
the issue on the basis that expert medical evidence was essential and was not
before him. He adjourned the hearing and, in light of Mrs Ling’s lack of funds,
ordered City to fund a joint medical report.

City appealed both the decision to refuse
to decide the disability issue in the absence of expert medical evidence and
the requirement that it fund a joint report.

The judgment

The Tribunal had erred in both respects.

In adjourning to require the parties to
obtain expert medical evidence, the Employment Judge failed properly to
consider the burden of proof. Had he done so, he would have realised that the
burden was on the Claimant and she was content at the stage of the preliminary
hearing to rely upon the GP records and her own witness evidence.

Further, in light of the 2005 amendment to
the disability discrimination legislation (which removed the requirement that a
mental impairment be clinically well recognised) and the guidance of the EAT inJ
v DLA Piper UK LLP
[2010] ICR 1052
, the proper approach was to hear
from the Claimant on the effects of the impairment and then, armed with that
evidence, to consider whether those effects were evidence of an underlying
impairment. There was a danger in considering “impairment” and “effect” as
distinct from each other or that they needed to be determined sequentially.

As to the requirement for the Respondent to
fund a joint report, the EAT did not accept that the overriding objective, of
itself, gave the Tribunal power to require a respondent to fund jointly
obtained expert medical evidence. The judge had failed to consider alternatives
to requiring the Respondent to pay for a joint report, which included asking
questions of the Claimant’s GP or allowing the Respondent to have its own
report, an approach endorsed in De Keyser Ltd v Wilson [2001] IRLR 324.

Comment

Consistent with the Presidential Guidance,
the EAT in Ling was clearly of the view that a claimant’s medical records,
combined with a statement of effect, ought to be sufficient in most cases to
enable a Tribunal to form a view on whether a claimant suffers from a
disability.

Nor should tribunals assume that the
existence of an impairment can only be addressed through expert medical
evidence. The existence of an impairment is often obvious once the tribunal has
made findings of fact as to its effect.

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