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

UK: requirement for causal link between disability and unfavourable treatment not satisfied by mistaken belief

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.

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

UK: Disability discrimination: rulings on unfavourable treatment and PHI benefits

  • The Supreme Court has upheld a Court of Appeal decision that treatment of a disabled employee which is advantageous (permitting ill health early retirement) cannot be viewed as unlawful ‘unfavourable treatment’ due to disability simply because it could have been more advantageous. In this case the pension was based on the part-time hours the employee had changed to pre-retirement, as a reasonable adjustment for his disability, rather than full-time hours. However, had he been able to work full-time, he would not have been entitled to retire early at all. (Williams v The Trustees of Swansea University Pension & Assurance Scheme)

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UK: voluntary reporting on disability and wellbeing

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.

Hong Kong: Proposed changes to discrimination laws

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.

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UK: new resources on criminal record checks, mental health and dyslexia

  • Unlock has published new guidance for employers on criminal record checks, to which the ICO has contributed. The guidance states that checks at the application stage are unlikely to be necessary for most jobs and therefore likely to be a breach of the GDPR. In relation to checks at the job offer stage, the guidance emphasises the need to think carefully whether these are necessary and whether there is a lawful ground and condition for processing. The guidance also discusses the use of personal social media and data in the public domain.
  • New resources on mental health in the workplace include guidance from the CBI, the CIPD and Mind, and new online gateway linking to many more resources at Mental Health at Work.
  • The charity Made in Dyslexia and EY have published a Value of Dyslexia report highlighting the huge value in dyslexic thinking and the unique set of skills that people with dyslexia can offer to an organisation.

UK: discrimination arising from disability claim only requires loose causal link

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.