UK: ECJ widens scope for disability discrimination claims

The European Court of Justice has ruled that direct disability discrimination may be established if the criterion for less favourable treatment is inextricably linked to disability.  The difference in treatment does not have to be in comparison with a non-disabled worker: it can be between disabled workers, for example where treatment differs according to different types of disability (in terms of particular conditions or symptoms) or potentially a difference in some other aspect of disability, such as whether the disability has been formally declared to the employer. Similarly, workers might be able to show group disadvantage supporting a claim of indirect discrimination where the disadvantaged group comprises individuals whose disabilities are more visible or require more reasonable adjustments than other disabled workers, rather than needing to show that the disadvantaged group has a particular type of disability (in terms of common symptoms).

In VL v Szpital Kliniczny im. dra J. Babińskiego, Samodzielny Publiczny Zakład Opieki Zdrowotnej w Krakowie (Case C-16/19), the employer paid an allowance to disabled workers only if they submitted their disability certificates after a certain date (as its aim was to increase the number of declared disabled workers, thereby reducing the amount it was required to pay into Poland’s state disability fund). Disabled workers were therefore treated differently depending on the date on which they first submitted a certificate of disability; those who had done so before the relevant date could not qualify by submitting a new certificate.

Although direct disability discrimination usually involves comparing the disabled worker’s treatment with that of a worker without a disability, the ECJ confirmed that a claim is possible where the difference in treatment takes place as between workers with disabilities. In this case, direct discrimination could be established if the date criterion was found to be inextricably linked to disability.  This question was remitted to the national court to decide, but the ECJ seemed to indicate that there might well be a sufficient link, pointing to the fact that the disability certificate gave rise to specific rights which could be relied on by the worker against the employer deriving directly from the worker’s status as disabled, and that the workers treated less favourably were those who had already declared themselves disabled to the employer.

As for indirect discrimination, the ECJ held that this could arise if workers with certain disabilities were subject to a particular disadvantage in comparison with workers with other disabilities. The key question would be whether the date criterion had the effect of putting certain workers at a disadvantage because of the particular nature of their disabilities. That ‘nature’ might be whether the disability is visible or requires reasonable adjustments at work, rather than the particular condition or symptoms.  Workers with visible disabilities or requiring adjustments would have had to formally disclose their disability to their employer at an earlier stage, by submitting disability certificates, whereas workers whose disabilities were less serious or did not immediately require reasonable adjustments might have retained the choice whether to do so and thereby have remained eligible to claim the allowance.

The judgment was handed down after 31 December 2020 and therefore is not binding on UK tribunals, but will be of persuasive value. If adopted, this may expand the scope for discrimination claims here. UK law already provides that direct discrimination claims can be based on comparison with an individual with a different type of disability; the ruling suggests a broad approach to what amounts to a type of disability, for example encompassing whether disability has been formally declared. However, the impact for UK law is likely to be limited, not least because similar facts here could support a claim of discrimination ‘arising from disability’ which does not require a comparator (although, unlike direct discrimination, this is subject to the defence of objective justification.)  The ruling may be more significant for indirect discrimination claims. These require a policy, condition or practice which disadvantages the claimant and others “who have the same disability”. Statutory guidance (which tribunals must take into account) suggests that, when identifying a shared disability, the focus should be on whether the symptoms are broadly the same, such as ‘mobility impairments’ (and therefore it does not matter that the medical cause of those symptoms differs).  The ECJ’s broader approach to the ‘type’ of disability may mean that those with disabilities with the same visibility or need for adjustments can be seen as having a shared disability. Employers will need to bear this in mind when assessing whether proposed policies may have a discriminatory impact.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: substantial adverse effect on claimant’s own ability can amount to disability, even if still within range of others’ abilities

The statutory definition of disability requires a substantial long term adverse effect on normal day to day activities.

The EAT in Igweike v TSB Bank Plc held that tribunals must assess the degree or extent of adverse effect on the individual’s own ability to carry out a particular activity and it is not necessary to show that the individual’s ability has reduced below the normal range of abilities of other workers.  However, the degree of variation in the abilities of other workers may assist in assessing whether the degree or extent of difference in the individual’s ability is substantial.

In this case, the tribunal had correctly found that the claimant was suffering from the ordinary symptoms of grief at his father’s death and that this had not developed into a more profound ‘impairment’;  even if it had, the tribunal had been entitled to conclude on the facts that the impact of his grief on his performance at work was not substantial.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: providing software to improve work efficiency could be reasonable adjustment for disabled employee

Employers have a duty to make reasonable adjustments to working conditions in order to remove any substantial disadvantage suffered as a result of an employee’s disability.

In Rakova v London North West Healthcare NHS Trust an employee with learning disabilities claimed that a failure to provide specialist software placed an employee with learning disabilities at a substantial disadvantage in that it caused her to be less efficient in her work tasks.  The EAT held that the tribunal had erred in assuming that being less efficient than colleagues coupled with a desire to be more efficient could not be a substantial disadvantage.  It commented: “Whilst it might be that a Stakhanovite desire for greater productivity would be entirely unrelated to any disadvantage suffered by the employee in question, it is also possible that, where the disability in question means that an employee is unable to work as productively as other colleagues, adjustments to enable her to be more efficient would indeed relate to the substantial disadvantage she would otherwise suffer.”  The claim was therefore remitted.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: undertaking as to future conduct and backstop termination payment could be reasonable adjustment for disabled employee

In some (rare) cases, an undertaking as to future conduct (potentially including to pay a termination sum in certain circumstances) could be a reasonable adjustment for a disabled employee.  Any requests for such undertakings will need to be considered carefully on a case by case basis.

In Hill v Lloyds Bank, the claimant’s disability caused her significant anxiety and fear about the theoretical possibility of being required to work with specific colleagues (albeit that her grievance of bullying and harassment against them had not been upheld), including making her physically sick.  The employer agreed that she would not be required to work with those individuals on her return, but she sought a formal undertaking to this effect and that the employer would offer her a severance package equivalent to redundancy if there was no alternative to working with those individuals.  The employer’s refusal to give this, on the basis that it had a practice of not giving formal undertakings in such situations, was held to be a failure to make a reasonable adjustment given the greater level of anxiety and fear this caused her due to her disability compared with how a non-disabled person would have reacted.  The giving of the undertaking would have alleviated that fear and the EAT saw no reason why the undertaking could not encompass agreement to a ‘backstop’ financial payment as that would enable the claimant to return to work without fear as to the future.

The EAT did concede that this type of undertaking might only rarely be required and that more informal steps to assuage an employee’s reasonable concerns at an early stage might prevent the request escalating.

Employers may be understandably concerned by this judgment.  However, such a claim would presumably only be feasible where the employee can show that their disability caused them to suffer significantly more anxiety about the theoretical future possibility than the level of concern many non-disabled individuals might well feel in this type of situation.  Although not mentioned in the EAT judgment, the size and resources of the employer were probably also relevant (in that there was no suggestion that the large employer here would have had any real problem ensuring the individuals did not work together again); such an undertaking might not be a reasonable adjustment for a smaller employer.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: proposed new right to request workplace modifications

The Government has published Health is everyone’s business: proposals to reduce ill health-related job loss, a consultation closing on 7 October, which proposes a new right for employees to request workplace modifications on health grounds (this would be in addition to the duty to make reasonable adjustments for disabled employees). This would be similar to the right to request flexible work and enable an employer to refuse on legitimate business grounds. Modifications could include recorded conversations with the employee about what is needed, seeking occupational health advice, and/or adjustments to hours, duties or the physical environment. The consultation asks if the right should be made available to all employees or limited to assist return from sick leave (possibly of a minimum length of 4 weeks) or after 4 weeks’ cumulative sickness absence. The right would be supported by a new Code of Practice and would be considered by an employment tribunal in an unfair dismissal claim.

Other proposals include measures to improve access to occupational health services and reforms to the statutory sick pay system, including to allow SSP to be paid on a pro rata basis during an employee’s phased return to work after sickness absence, removing the concept of qualifying days and removing the lower earnings limit for eligibility.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

 

UK: Court of Appeal confirms that discrimination because of a perceived disability is unlawful

The Court of Appeal has confirmed that direct discrimination on grounds of perceived disability is unlawful. As the statutory definition of disability can include progressive conditions, perceived disability can include where an employee has a condition which currently does not cause a substantial adverse effect on normal day-to-day activities but the employer mistakenly perceives that it is likely to worsen so as to have that effect in the future. It is not necessary that the employer perceives the employee expressly to satisfy the statutory definition of disability, only that it perceives the employee to have an impairment with the features specified in the statutory definition.

Where an employer rejected a job applicant based on stereotypical assumptions that the individual’s condition (in this case, hearing loss) would worsen sufficiently to give rise to a substantial adverse effect in the future, that constituted direct disability discrimination on grounds of perceived disability. Direct disability discrimination cannot be justified. This can be contrasted with the situation where the reason for the treatment is that an employee is or is perceived to be unable to do the work required satisfactorily as a result of disability, where the claim is for discrimination arising from disability and the employer can seek to justify the treatment.

Given the breadth of potential disabilities, managers should be live to the potential for perceived disability claims when making decisions based on their view of an individual’s capabilities. Decisions should be based on medical evidence rather than assumptions about the individual’s condition. (Chief Constable of Norfolk v Coffey)

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: withdrawal of overseas assignment not unlawful disability discrimination

In Owen v AMEC Foster Wheeler Energy Ltd, the Court of Appeal has upheld the decision that an employee with multiple disabilities did not suffer direct disability discrimination when an offer of an overseas assignment was withdrawn, given that a medical assessment identified a high risk that he would require medical attention when overseas. The correct comparator was a person who lacked the claimant’s disabilities but was at a similar risk of needing medical attention overseas, and on the facts the comparator would have been treated in the same way. Further, as there were no less discriminatory alternatives, the requirement to pass the medical was also not unlawful indirect discrimination or failure to make reasonable adjustments.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: employers must take into account knowledge of disability arising between dismissal and appeal

Managers hearing internal appeals should be reminded of the importance of taking into account any new information or evidence that comes to light after an initial decision to dismiss but before the appeal hearing, particularly where that information relates to being disabled. This could mean adjourning to obtain medical evidence where appropriate.

In Baldeh v Churches Housing Association of Dudley and District Ltd, an employee dismissed for poor performance only disclosed that she suffered from depression, which affected her performance, at the appeal hearing. The EAT ruled that the tribunal had been wrong to reject her claim that the dismissal was disability discrimination simply because the employer had no actual or constructive knowledge of the disability at the time of the decision to dismiss, given it arguably did have such knowledge at the time of appeal and the appeal was an integral part of the dismissal.

The judgment also underlined that a claim of discriminatory dismissal because of “something arising in consequence of the disability” need only establish that the “something” had a material influence on the employer’s decision to dismiss and not that it was the sole or main reason. The case was remitted to be reheard.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: employer policy on reasonable adjustments for disability relevant to scope of duty

A reference to an adjustment for disabled employees in an employer’s own policy will be relevant in determining whether there is a duty to make that adjustment, notwithstanding that the policy may be expressed to be discretionary. In Linsley v Commissioners for HMRC, the EAT held that an adjustment that is recommended in the employer’s own policy is one that is likely, at least as a starting point, to be a reasonable adjustment to make. While there may be good reasons for departing from the policy, in such cases the employer ought to be able to provide a cogent reason for doing so.

The employment tribunal had erred in not properly taking into account the existence of the employer’s policy (of giving priority over dedicated parking spaces to disabled employees) when deciding that there was no breach of the duty to make reasonable adjustments. The employee needed urgent access to toilet facilities but, instead of a dedicated parking space near the office building, was offered alternative, less satisfactory options should she fail to get a space near the building on a first come, first served basis. The tribunal should also have taken into account the stress she suffered as a result of having to find a space, an issue which had been raised at an earlier point; the absence of an express reference to it in later reports did not mean that the employer was unaware of it. Where there is a long history of medical evidence and correspondence about a medical issue, an employer should review matters comprehensively and not base its approach on the most recent evidence only. The case was remitted to consider the issue of reasonableness.

Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819

UK: new resources on mental health, neurodiversity and disability passports

  • Mental Health First Aid England has published guidance for employers introducing mental health first aiders into the workplace. This highlights the importance of senior leadership engagement and makes recommendations on reviewing current working practices and support, creating clear documentation setting out the expectations and limits of the role, confidential logging of support conversations (anonymised), and training and support for those undertaking the role. There is also a guide for those undertaking the role;  both are available here.
  • The GMB and TUC have launched a model disability passport setting out a disabled employee’s required reasonable adjustments, to make it easier for disabled employees when changing role, line manager or employer. See here for further details.
Anna Henderson

Anna Henderson
Professional Support Consultant, London
+44 20 7466 2819