UK: recent tribunal cases highlight importance of neurodiversity awareness

Recent cases have highlighted the importance of HR teams and managers having a basic knowledge of the types of challenges neurodivergent individuals can face in dealing with common recruitment and workplace processes and practices, but not assuming that everyone with a given condition will have the same difficulties.  It will always be important to obtain information about an individual’s specific difficulties so that reasonable adjustments are made to remove any substantial disadvantage faced by a particular disabled candidate/employee.  Being open-minded and flexible about how information is communicated will often be an important first step and may be enough in itself or enable other reasonable accommodations to be identified.

In AECOM Ltd v Mallon, the EAT upheld a tribunal judgment that an employer had failed to make reasonable adjustments for a job applicant with dyspraxia who asked to make his application orally rather than complete an online form.  M’s condition causes him particular difficulties expressing his thoughts in writing and, because of prior experience with online forms, he was too anxious about the process of completing an online form even to start the process of creating a username and password.  He had emailed the HR department attaching his CV and including the information that he had dyspraxia and about how dyspraxia affects people generally (although not his particular difficulty creating a login), and had asked in bold capitals to be permitted to make an oral application because of his disability.  He asked that this be arranged by email and stated he would supply a phone number if emailed.  The employer made repeated email requests asking him to confirm his specific difficulties with the online form. M did not respond to these, nor did he phone the employer for fear of being laughed at (due to his prior experience with another employer), but instead repeated his request to provide the information for the online form over the phone or to make an oral application.

The EAT upheld the tribunal’s finding that the employer ought to have known that M’s dyspraxia meant that he had difficulties accessing the online form. Employers must make ‘reasonable’ enquiries as to the extent of the difficulties that a disabled person may face.  Given the employer had requested more details of M’s difficulties by email and received no written response, it would have been reasonable to have telephoned M (and it would then have been able to make reasonable adjustments to facilitate M’s application).  Given M’s problems with written communication, it was not reasonable to expect him to explain his specific difficulties with the online application process in an email.

Similarly, in Duncan v Fujitsu Services Ltd, the employment tribunal held that an employer had failed to make reasonable adjustments for an employee with Autistic Spectrum Disorder by insisting on staff mainly having work discussions orally.  D often struggled to communicate orally, and it would have been a reasonable adjustment to allow him to communicate mainly in writing, not require him to phone in when sick, and to provide a written agenda before meetings.  He also succeeded in his harassment claim in relation to the employer’s decision to agree to his mother’s request to discuss his sickness absence without his consent or other lawful excuse, in breach of data privacy law.  Clearly it might be appropriate in some situations to contact a relative without consent, for example if seriously concerned about an individual’s physical or mental wellbeing and the individual’s consent cannot be obtained, but it would be prudent to make the confines of this clear in a general policy, to which line managers can refer, and in appropriate cases potentially to agree this with an individual in advance.

Rackham v Judicial Appointments Commission demonstrates the fact-specific nature of these cases and that employers can reasonably refuse adjustments which would undermine those parts of the selection process needed to ensure successful candidates can perform in the role.  R has Autism Spectrum Disorder and Asperger’s Syndrome, which causes him difficulty with one-to-one communication and in imagining and dealing with theoretical and hypothetical situations as opposed to real situations.   The tribunal held that it was not a reasonable adjustment to a recruitment process for a judicial role to accede to R’s request to simplify the written questions in a skills test or allow R to complete a practical task instead, given that the questions were designed to replicate the requirements of the role and it would have been far too onerous to turn the test into a mock scenario. R had been given extra time to complete the test with the assistance of someone he knew and allowed to submit his answers offline or by email.  It was not reasonable to require the employer to provide a trained autism facilitator to assist, as the employer had been entitled to rely on National Autistic Society advice that it was better to have someone known to R to assist him.  Seeking best practice advice from a relevant charity or expert body will obviously be prudent, particularly where an employer is proposing a different adjustment from that sought by the individual.  The tribunal also noted that the test had been reviewed by the employer’s Diversity and Engagement Team to ensure it was effective and did not disadvantage individuals in society.


Anna Henderson
Anna Henderson
Professional Support Consultant, London

UK: round-up of new employment law consultations, guidance and progress on legislative proposals

As usual, the weeks before the Summer Parliamentary recess have seen a flurry of consultation announcements and legislative progress.  Our round-up is below:


  • Reforms to right to request flexible work: The Employment Relations (Flexible Working) Bill received Royal Assent on 20th July 2023. It requires regulations to be implemented, but once in force will:
    • allow employees to make two (rather than one) flexible working requests in any 12 month period (but there can only be one live application at a time),
    • require employers to consult before refusing a request,
    • require employers to make their decision within two rather than three months (unless an extension is agreed), and
    • remove the requirement that the employee must explain in the statutory request what effect the change would have on the employer and how that might be dealt with.

The Act does not include any detail on the new consultation requirement, but the general obligation to deal with a statutory request “in a reasonable manner” remains.  Further detail of what may be required (depending on the circumstances) is set out in the draft updated Statutory Code recently published for consultation by Acas until 6 September 2023. Tribunals will be required to take the Code into account where relevant.  See here for further details.

  • Proposed harassment law watered down: the Worker Protection (Amendment of Equality Act 2010) Bill is currently at the Report stage of the House of Lords. The Bill originally provided for the introduction of employer liability for harassment of employees by third parties and a new proactive duty to take all reasonable steps to prevent sexual harassment in the workplace. Although these were both included in earlier government proposals, concerns about freedom of speech have led to the House of Lords amending the Bill to remove the third party liability provision and dilute the proactive duty to an obligation to take reasonable steps to prevent sexual harassment in the workplace (rather than “all reasonable steps”).  It appears that the Government will support these amendments in the Commons. Breach of the new duty will not give rise to a separate tribunal claim, but compensation for a sexual harassment claim (under the current law, where the employer defence to vicarious liability still requires the taking of all reasonable steps) could be uplifted by up to 25% if there is a breach of the duty to take (some) reasonable steps. An employer could also be subject to enforcement action by the EHRC for breach of the new duty.
  • Changes to paternity rights: the Government has finally published its response to a 2019 consultation confirming that it does not currently intend to make any changes to shared parental leave and pay, maternity leave and pay and unpaid parental leave.  The only changes proposed are to give employed fathers and partners more flexibility around when they take paternity leave (allowing this to be in two separate weeks and at any time in the first year from birth) and reducing the notice required.  Regulations will be introduced “in due course”.
  • New form of ADR for employment tribunal claims: Updated Presidential Guidance has introduced a new form of ADR for more complex claims. The Dispute Resolution Appointment (DRA) will be evaluative and mandatory (with potential costs consequences for failure to attend) where a judge considers it appropriate (unless a party can persuade the judge otherwise). They are intended for cases with a listing of at least six days, although there is likely to be regional variation in their use.  See our post here for more details.
  • Strike law permitting use of agency workers quashed: the High Court has allowed a judicial review challenge to the Conduct of Employment Agencies and Employment Businesses (Amendment) Regulations 2022 on the basis that the Secretary of State had failed to comply with his duty to consult before making the regulations.  The Court made an order quashing the regulations with effect from 10 August 2023.  From this date employment businesses will no longer be able supply temporary workers to employers to cover those involved in industrial action.  The Strikes (Minimum Service Levels) Bill has also received Royal Assent, but will require secondary legislation to be brought into force.


  • The Government is consulting until 6 October 2023 on its Disability Action Plan 2023-2024.  One proposal is to develop a “Disability Enabled” badge to encourage businesses to provide disability awareness training to their staff.
  • The Government is consulting until 12 October 2023 on measures to increase employer uptake and widen the reach of Occupational Health and a new national “health at work” standard for businesses to adopt (see here).  A separate consultation looks at options to increase investment in Occupational Health services through tax incentives.
  • The Government has launched a review into the effectiveness of the whistleblowing framework.  The evidence-gathering stage will end in Autumn 2023.  The policy paper states that the review will examine evidence related to the definition of worker for whistleblowing protections, but there is no other indication of what potential reforms might be considered.
  • A Government consultation response published in 2019 set out proposals to legislate on the use of confidentiality clauses in settlement agreements and employment contracts “when Parliamentary time allows”.  In May 2023 the Justice Minister commented that the government was planning its next steps carefully.  Meanwhile the Legal Services Board issued a call for evidence (ending on 14 July 2023) on the role that lawyers’ conduct can play in the misuse of NDAs. It expects to publish its conclusions and any proposals later in 2023.
  • The Government has published a Call for Evidence from individuals and employers, open until 7 November 2023, on their experience of non-statutory flexible working, in particular for examples of best practice.  The consultation also seeks information on employer policies such as for compassionate or special leave.

New guidance/other resources

  • The Great British Workplace Adjustments Survey 2023 published by the Business Disability Forum highlights limitations around the use of disability passports and occupational health and makes a number of useful recommendations to improve support for disabled employees needing reasonable adjustments in the workplace.
  • The Government has announced the launch of a new review supported by the charity Autistica, to make recommendations to the Secretary of State in September 2023 on measures to support employers in recruiting and retaining autistic people.  Alongside the review, Autistica are promoting awareness of the barriers faced by autistic people in the traditional interview process and have produced the Autistica Employers Guide to Neurodiversity with guidance on how to run inclusive interviews.
  • The British Standards Institute has published a new code of practice on equality, diversity and inclusion in the workplace.  It provides recommendations for practical steps that employers can take to help develop and implement an effective framework to support diversity, equity and inclusion in its workplaces.
  • The British Standards Institute has also launched a new standard on menstruation, menstrual health and the menopause in the workplace, which sets out practical recommendations for workplace adjustments, as well as strategies to sit alongside existing well-being initiatives.
  • The Government has published guidance for employers on helping individuals return to work, covering key considerations, how to design a return to work programme, and how to effectively conduct and deliver the programme.

Please do get in touch with your usual HSF contact if you would like to discuss any of these developments in more detail.

Anna Henderson
Anna Henderson
Professional Support Consultant, London

UK: employers may need to consider adjustments to redundancy selection process for disabled employees, but can take into account impact on other at-risk employees

Employers may need to consider adjustments for employees with mental impairments when using interviews to select for redundancy, but this will not necessarily require the employee simply to be slotted into an available alternative role without interview, where this would impact on other at-risk employees.

In Hilaire v Luton Borough Council, the EAT ruled that the employee claimant’s problems with memory, concentration and social interaction, caused by his depression, would probably hinder effective participation in an interview and therefore the employer had a duty to consider whether there were reasonable adjustments that would alleviate the disadvantage suffered.

In some cases it might be a reasonable adjustment to delay the interview process for a short period to allow an employee’s condition to improve, or potentially to consider other methods of selection.  However, in this case the employee had a significant impairment from which recovery would be protracted, such that a short delay would not alleviate the disadvantage. Further, the tribunal was entitled to accept the employer’s evidence that it was not feasible to adopt a different selection method, given it had been agreed with the union.

The claimant argued that it would have been a reasonable adjustment to simply slot him into a role without interview.  The EAT ruled that there was no error in the tribunal’s rejection of this argument. The selection process had been applied to 13 employees and prioritising the claimant would have impacted on these others.  In this case, the tribunal was entitled to consider that, given the surrounding circumstances and impact on other employees, no step, including slotting in, would be a reasonable step for the employer to have to take.  Making a reasonable adjustment is not a vehicle for giving an advantage over and above removing the particular disadvantage.

(The EAT also upheld the tribunal’s conclusion that the claimant would not have taken part in the interview for reasons unconnected with his disability, so he failed on causation in any event.)

Anna Henderson
Anna Henderson
Professional Support Consultant, London

UK: tribunal confirms long Covid symptoms could amount to disability

A recent tribunal ruling serves as a reminder that employers dealing with an employee off sick with ‘long Covid’ should carefully consider whether the individual could be disabled within the statutory definition, bearing in mind evidence that it is common for symptoms to fluctuate and that some individuals do continue to suffer for 12 months.

In ruling that the claimant’s ‘long Covid’ was a disability in Burke v Turning Point, the tribunal took note of the June 2021 TUC report setting out that the most common symptom is fatigue (with poor concentration, joint pain, headache and muscle pain also noted), that for many people symptoms vary over time, and that for around a third symptoms can last for 12 months.  The tribunal rejected suggestions that the claimant was exaggerating his symptoms, noting that this was unlikely given sick pay entitlement had already been exhausted so there was no financial incentive to remain off work.

Each case will depend on its own facts, but an individual may well be able to meet the statutory definition by showing a substantial adverse effect on day-to-day activities likely to last for at least 12 months, notwithstanding that there may have been short periods when the symptoms temporarily subsided (and even if occupational health happen to have assessed the individual as fit to work during one of these periods, as in Burke).  If so, the employer may have a duty to make reasonable adjustments such as offering flexibility to facilitate a return to work (for example, remote work, part-time hours, or a phased return) or adjusting absence management policies, while premature dismissal may expose the employer to the risk of disability discrimination claims.

This latter risk is demonstrated by the EAT ruling in Department for Work and Pensions v Boyers. The claimant suffered from severe migraines and mental health issues which she claimed were exacerbated by a colleague’s bullying and so was unable to work in her original team;  she was off sick for a prolonged period apart from a short trial in a different role and location.  The employer deemed the trial unsuccessful without proper evaluation and despite its failure to give her reasonable support in the new role.  In these circumstances it was discriminatory to dismiss for long-term absence, given that a properly supported and evaluated trial might have meant she was able to continue in employment.

Employers considering dismissal for long-term absence should first consider whether there are less discriminatory alternatives on the facts, such as a return to an alternative role and, if so, ensure that the claimant is given a reasonable trial in the new role with appropriate support.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London

UK: Government seeks employer views on disability workforce reporting

Further to its National Disability Strategy published in July 2021, the Government is now consulting until 25 March 2022 on the case for mandatory workforce reporting on disability by large employers (with 250 or more employees).

Views are sought from employers and disabled employees on the current voluntary framework and how reporting could be increased, either voluntarily or through imposing mandatory requirements, in order to support the cultural changes required to build a more inclusive society and reduce the disability employment gap.

The consultation document notes that awareness of the voluntary framework appears low – CIPD research in April 2021 found that only 21% of respondents were aware of the framework and of these only 37% had implemented at least part of it.  The voluntary framework encourages collection and publication of a range of information to contextualise the percentage of workforce considering themselves disabled, including policies for recruitment and retention of disabled people, the availability and take up of support offered, workplace adjustments made, pay and progression data, employee engagement levels, mental health training and wellbeing assessments.  The consultation seeks evidence as to the awareness and usefulness of this framework.

The consultation also asks what data employers currently collect, suggesting possibilities which may indicate the types of information the Government is considering mandating.  These include the proportion of disabled staff in the whole workplace and split by job level, types of disability, proportion of staff requesting reasonable adjustments, and data showing the disability breakdown of use of career progression schemes, pay and performance ratings.

The rest of the consultation seeks views on the benefits and barriers to voluntary or mandatory disability workforce reporting, how a mandated approach to reporting might be implemented in practice, and if there are alternative approaches that could also be taken to enhance transparency and increase inclusive practices.

Employers wishing to respond can do so here.  The Government has indicated that it expects to publish its response to the consultation by 17 June 2022, a relatively tight timetable which perhaps suggests that it aims to include provisions for mandatory reporting (if this is the outcome of the consultation) in the long-awaited Employment Bill – and that this Bill may finally surface in 2022.

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

UK: tribunal rules that requiring office-based working to the disadvantage of employees who care for disabled dependents can be unlawful indirect discrimination

A first instance tribunal decision has ruled that UK law should be read as prohibiting a policy which indirectly discriminates against an employee who cares for a disabled person, for example due to a lack of flexibility over hours or location of work.

Currently, discrimination because of association with a person with a protected characteristic is only expressly prohibited in relation to direct discrimination and harassment (for example, not recruiting or harassing someone because they have a disabled child); indirect discrimination claims can only be brought by a claimant who themselves has the protected characteristic.  Despite this, an employment tribunal has now ruled that the Equality Act must be read as prohibiting associative indirect discrimination in order to comply with EU case law.  When designing policies employers should consider the potential for disadvantage to individuals associated with someone with a protected characteristic, and should check that the policy is a proportionate means of achieving a legitimate aim.  This is likely to be particularly relevant at the moment when employers are considering requiring a return to office-work or hybrid working following homeworking during the pandemic.

In Follows v Nationwide, the employer’s decision to require senior managers to be fully office-based put F at a substantial disadvantage – as the principal carer for her disabled mother she had previously only attended the office 2 or 3 days a week and was unable to comply with the new requirement.  The European Court of Justice in Chez Razpredelenie Bulgaria (see here) established that the concept of associative discrimination could in principle be extended to indirect discrimination.  The tribunal therefore determined that the Equality Act must be read in a manner consistent with Chez to permit an indirect discrimination claim notwithstanding that it was F’s mother, rather than F, who was disabled.

The tribunal accepted as a general proposition and as a self-evident fact that carers for disabled people are less likely than non-carers to be able to satisfy a requirement to be office-based, because of their care commitments. It ruled that the employer’s aim of providing on-site supervision was not legitimate, as the need to be on site was itself discriminatory.  However, even if there had been a legitimate aim, F’s dismissal was not a proportionate means of achieving the aim, given that a hybrid arrangement could have worked on the facts.  The tribunal was not satisfied that the requirement to be fully office-based corresponded to a real need, nor that it was based on actual evidence or rational judgment.

Although not binding on other tribunals, the decision is noteworthy as the first time Chez has been applied in England. It extends indirect discrimination law to cover disadvantage to a group defined by association with individuals with a protected characteristic. However, it does not touch on whether and in what circumstances protection should also extend to the situation where individuals with a protected characteristic are disadvantaged and the claimant “suffers alongside” those individuals (the scenario that arose in Chez). Of course, following Brexit, it will also be open to the Court of Appeal or Supreme Court to depart from the Chez ruling if the issue comes before them.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, London
+44 20 7466 2819
Nick Wright
Nick Wright
Senior Associate, Employment, London
+44 20 7466 7524

UK: government response to consultation on sexual harassment reforms and ill-health proposals

Sexual harassment in the workplace

The Government has just published a  response to its 2019 consultation on possible measures to address sexual harassment in the workplace.  This confirms that it will:

  • introduce a positive duty on employers to take all reasonable steps to prevent harassment in the workplace,  the scope of which would be clarified by a statutory code of practice;
  • introduce employer liability for third-party harassment subject to a reasonable steps defence;
  • closely look at extending the three-month time limit for bringing (all types of) discrimination and harassment claims to six months.

The new proactive duty is a reformulation of the existing law, where an employer is liable if an incident of sexual harassment occurs and it has failed to take all reasonable steps to prevent it.  Although it mirrors the existing requirement to take all reasonable steps, it means that the employer could potentially be held to account through enforcement action by the Equality and Human Rights Commission (EHRC) without the need for an incident to have occurred.  Individual claims will still require an incident to have taken place.  The Government will consider further what would be appropriate compensation.

The Government will “support the EHRC” in developing the new statutory code of practice, which “will complement” the EHRC’s technical guidance published in January 2020 (discussed here).  Additional guidance on practical steps will also be published.

Further consideration will be given as to whether liability for third party harassment will apply only if an incident has occurred.  Although not mentioned, hopefully specific guidance on what amounts to reasonable steps in relation to third parties will also be published, given the scope for significant differences in the likelihood of third party harassment in different employment contexts, and the potential relevance of the type of third party (from corporate client engaging in repeat business to one-off interaction with Joe Public) to what steps are reasonable.

It is unclear whether the new proactive duty and third party liability will apply in respect of all the protected characteristics in the Equality Act, although this was suggested in the original consultation paper.

The response confirms that the Government will not make any changes in relation to protection for interns (most of whom it believes are already covered as ‘workers’) or volunteers, nor does it intend to reinstate the employment tribunal power to make wider recommendations to employers who lose a discrimination claim.  Equally, suggestions to require the publication or reporting of sexual harassment policies and/or the number of harassment complaints, or for a naming and shaming mechanism, have not found favour.

Changes will be introduced when parliamentary time allows (and indeed we are still waiting for promised legislation on NDAs).  In the meantime, it would be prudent for employers to review the steps suggested in the EHRC’s January 2020 technical guidance, which is likely to form the basis for the statutory code in due course.  Some of these steps will also be relevant to third party harassment; additional steps might include workplace notices, contractual clauses requiring third parties to have given appropriate training to any relevant staff, and/or specific training for managers to ensure complaints about third parties are dealt with appropriately.

Ill-health proposals / national disability strategy

The Government’s consultation, Health is everyone’s business: proposals to reduce ill health-related job loss, also in 2019, proposed a new right for employees to request workplace modifications on health grounds (in addition to the duty to make reasonable adjustments for disabled employees), 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 (see here).

The Government has now published its response.  It is not going to proceed with the ‘right to request workplace modifications’ (in light of concerns that it might undermine the duty to make reasonable adjustments) and has decided that now is not the right time to make changes to the SSP system (although further consideration will be given to the SSP proposals).

Instead the Government proposes better-integrated health and disability-related information and advice for employers, improving the guidance on returning to work post-coronavirus, improving awareness and advice on sickness absence, and improving access to Occupational Health (including testing a new subsidy to improve access in SMEs). The Health and Safety Executive is to work with other bodies to develop non-statutory guidance to support disabled people and people with long-term health conditions to remain in work, and on managing any related sickness absence, before then exploring the introduction of statutory guidance.  Flexible working may also help those with health conditions and the response reiterates that a consultation on making flexible working the default, unless an employer has good reasons not to, will be published in due course.  The fit note regime will also be improved, including proposals for an interactive digital version and a wider range of healthcare professionals eligible to sign.

A Health and Disability Green Paper has also been published for consultation here. This includes a discussion of plans to improve employment support for disabled people, for example by improving Access to Work, developing an Access to Work Passport setting out the needs of a disabled individual, and encouraging employer sign-up to the Disability Confident scheme.  A White Paper following up on responses received is expected mid-2022.  These initiatives are also noted in the Government’s new National Disability Strategy which seeks to remove barriers faced by disabled people in all aspects of their lives, including work and business. A new online advice hub for employers, run by BEIS in conjunction with Acas, has been made available here.  The Strategy also states that by the end of 2021 it will have launched consultations on workforce disability reporting (including voluntary and mandatory reporting of disability status, but not the disability pay gap) by businesses with at least 250 employees and on making flexible working the default, and will set out the next steps to introducing up to one week of unpaid carers’ leave.

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

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: condition with recurring but short-term substantial adverse effect was not disability where recurrence was not likely

The statutory definition of disability for discrimination law purposes requires that an employee show that they have or had an impairment which has a substantial adverse effect on normal day-to-day activities which is long term (lasting or likely to last 12 months or for life);  the effect can be actual or can be deemed to exist while it is “likely to recur”.  The EAT in Sullivan v Bury Street Capital Limited has made clear that the fact that an effect has recurred episodically does not automatically mean that it was “likely to recur” (ie, “could well happen”) between those episodes.  It was open to a tribunal to find that the effect was not “likely to recur” after the first episode, notwithstanding that it did in fact recur.  This may be the case where there is a triggering event which brings on the substantial adverse effect and which event is itself unlikely to continue or recur.

The employee in this case suffered from paranoid delusions (that a Russian gang was following him) for several years, but these only had a substantial adverse effect on his daily activities for a few months when the delusion started in 2013 following his breakup with his Ukrainian girlfriend, and for a few months in 2017 triggered by discussions about remuneration.  The tribunal was entitled on the facts to reject the suggestion that, between 2013 and 2017 or after 2017, a further episode was likely and therefore its finding that the claimant was not disabled was upheld.

The EAT also held that the tribunal was entitled to conclude that, even if the employee had been disabled, the employer had no actual or constructive knowledge of that disability.  The fact that a colleague who worked closely with the claimant had not noticed any unusual appearance or behaviour was relevant; an individual’s knowledge in his capacity as employee or agent of a company may be relevant in determining whether the company has the requisite knowledge, all the more so where, as here, the company is small, with no more than five or six individuals employed at any given time. Further, although the claimant’s manager had information that ought to have suggested that there was a substantial adverse effect, he could not reasonably have been expected to know that it was long-term as the claimant had given the impression things were much improved after the first episode.  Although his poor time-keeping and record-keeping continued, these had started before the onset of the mental impairment and it would not have been reasonable to expect the employer to make further inquiries of the claimant’s mental condition in these circumstances.

The case highlights the need for employers to carefully consider each part of the statutory definition and the level of knowledge of colleagues and managers when determining whether an employee qualifies as disabled.

Note: the Court of Appeal dismissed an appeal in this case in November 2021.

Anna Henderson
Anna Henderson
Professional Support Consultant, Employment, 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