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.
In iForce Ltd v Wood, the EAT has clarified that there is no claim for unfavourable treatment arising from disability where an employee is disciplined because they refuse to obey an instruction which they wrongly believe will exacerbate their disability, unless the disability itself causes the employee to form that mistaken belief (eg, because of pain or stress).
An employee mistakenly believed that moving to a different workstation would expose her to colder and damper working conditions which would exacerbate her osteoarthritis and so refused to do so; in fact the temperature and humidity levels were not materially different. She was unable to show that the warning she was given for refusing to move was less favourable treatment because of “something arising from her disability”. Although the causal link between the “something” and the underlying disability may be a loose one and may involve several links, there must be an actual connection, not just a perceived connection on the part of the employee.
In a bid to increase the diversity of workforces, and increase access to employment for those with disabilities, Taiwan has a quota for the number of disabled employees. We take a look at how this works in practice.
Malaysia’s Ministry of Human Resources has recently proposed amendments to the Industrial Relations Act 1967 (“IRA”) which, if introduced, would result in, amongst others, significant changes to the dispute resolution regime for employment claims in Malaysia.
The Government has published a framework for large employers to report voluntarily on disability, mental health and wellbeing in their workplace. It suggests that employers publish a narrative explaining their activities in relation to the recruitment and retention of disabled people and to support health and wellbeing. Where possible it also recommends that employers report the percentage of individuals who consider themselves to be disabled or have a long term physical or mental health condition and the output of staff surveys measuring wellbeing.
On 30 November 2018, legislation was gazetted which proposes various amendments to the Sex Discrimination Ordinance, Disability Discrimination Ordinance, Family Status Discrimination Ordinance and the Race Discrimination Ordinance. The proposed amendments reflect eight of the recommendations from the Equal Opportunities Commission Report on the Discrimination Law Review. Key changes include extending protections against discrimination on the ground of breastfeeding and extending protections against disability and racial harassment by customers.
Employers should consider carefully whether there may be a connection between an employee’s disability and their conduct before dismissing or taking disciplinary action for that conduct. In Sheikholeslami v University of Edinburgh the EAT confirmed that a claim of discrimination because of “something arising in consequence of disability” can involve more than one link in a chain of consequences. In that case an employee was dismissed because of her refusal to return to work in her previous role; the EAT considered that there could be a sufficient link if the disability caused her to experience stress and anxiety and conclude that she could not return to her previous role in which she perceived that she had been mistreated.