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.
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)
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.
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.
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.