Disability

by Kate Russell

Defence

Discrimination arising out of a disability is where an employer treats an employee unfavourably because of something arising in consequence of the employee’s disability and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim. In other words, the employer must demonstrate that measures taken were ‘reasonably necessary’ in order to achieve its aims – such as a business need or health and safety. Discrimination arising out of a disability cannot occur unless the employer knew or should have known about the employee’s disability at the relevant time.

Unfavourable treatment need not be due to a person’s disability for there to be disability discrimination, but the unfavourable treatment must be because of something that arises in consequence of the disability. This means that there must be a connection between whatever led to the unfavourable treatment and the disability.

The most obvious example is where an employee is treated unfavourably because of a period of disability-related absence.

Examples

  1. An employee has a visual impairment which means that they cannot work as quickly as other colleagues. Their employer is aware or should be aware of the situation but subsequently dismisses that employee due to low output. This dismissal will be discrimination arising from disability, unless it is objectively justified.
  2. A woman is disciplined for losing her temper at work. However, this behaviour was out of character and is a result of severe pain caused by cancer, of which her employer is aware. The disciplinary action is unfavourable treatment. This treatment is because of something which arises in consequence of the worker’s disability, namely her loss of temper. There is a connection between the ‘something’ (that is, the loss of temper) that led to the treatment and her disability.

Once it has been established that an employee has been treated less favourably for a reason arising from his disability, the court will have to consider whether the employer has a defence.

The Equality Act will only accept less favourable treatment if it is ‘a proportionate means of achieving a legitimate aim’.

What will, and what will not constitute a defence?

Less favourable treatment of a disabled person will be a proportionate means of achieving a legitimate aim only if the reason for it is both material to the circumstances of the particular case and substantial. This means that the reason has to relate to the individual circumstances in question and not just be trivial or minor. Some illustrative examples are given below.

Examples

Someone who is blind is not short-listed for a job involving computers because the employer thinks blind people cannot use them. The employer makes no effort to look at the individual circumstances. A general assumption that blind people cannot use computers would not in itself be a material reason. It is not related to the particular circumstances.

Someone who has psoriasis is rejected for a job involving modelling cosmetics on a part of the body which in his case is severely disfigured by the condition. That would be lawful if his appearance would be incompatible with the purpose of the work. This is a substantial reason which is clearly related – material – to the individual circumstance.

Less favourable treatment cannot be a proportionate means of achieving a legitimate aim where the employer is under a duty to make a reasonable adjustment but fails to do so.

For example, an employee who uses a wheelchair is not promoted, solely because the work station for the higher post is inaccessible to wheelchairs, though it could readily be made so by rearrangement of the furniture. If the furniture had been rearranged, the reason for refusing promotion would not have applied. The refusal of promotion would therefore not be justified.

What constitutes ‘a proportionate means of achieving a legitimate aim’ is fact specific and will be considered by the courts.

Example

The Land Registry operated a discretionary bonus scheme in which employees who received a formal warning during the relevant financial year were rendered ineligible for a bonus. Formal warnings that had been received for a conduct-related matter could be ignored, at a manager’s discretion, when determining bonus entitlement, but there was no such discretion to ignore a warning in relation to sickness absence.

The five claimants were all disabled, and each had been absent due to sickness during the 2012 financial year, in all cases as a result of their disabilities. The Land Registry had various reasonable adjustments in place that assisted the claimants in overcoming their disabilities, and adjusted the normal trigger points that would usually lead to a warning. However, despite these adjustments, each of the claimants eventually received a warning. These warnings made them ineligible for a bonus, and no bonus was paid to them.

The claimants successfully claimed discrimination arising from disability before an employment tribunal.

The tribunal did not accept the Land Registry’s submission that the link between the disability and the non-payment of bonus was too remote and in the words of EHRC Code, the non-payment was the consequence, result, effect or outcome of each claimant’s disability.

In terms of justification, it agreed that the Land Registry had a legitimate aim of acknowledging employee’s contributions and specifically encouraging and rewarding good performance and attendance. However, the tribunal held that the bonus scheme in place was not a proportionate means of achieving that aim. It could not take into account the fact that three of the claimants had improved their absence record after the warning, and there was an anomaly in the scheme where conduct-related warnings could be ignored, but not warnings for sickness absence.

The Land Registry appealed to the Employment Appeal Tribunal (EAT).

The EAT upheld an employment tribunal’s decision that an employer discriminated against disabled employees by operating a bonus scheme, which did not pay out to employees who had received a warning for high levels of sickness absence.

The employer had reasonable adjustments in place to delay the issuing of a warning to an employee who was absent due to a disability. However, the fact that receiving a warning led to an automatic disqualification from the bonus scheme meant this was an example of discrimination arising from disability. The Tribunal also decided that it was irrelevant that the HR officer who made the decision not to pay the bonus had no knowledge of the employees’ disabilities; what was important was that the disability-related absences had led to the non-payment.

If you have a bonus scheme that is linked to attendance, ensure that there is sufficient flexibility within the scheme to avoid withholding payment in circumstances where it is likely to be discriminatory.

Give careful consideration to any decisions you make regarding a disabled employee’s conduct, performance or absence in the workplace, especially disability related absence. Be able to justify on safe objective business grounds treatment of staff who might be able to argue that they have been treated unfavourably because of something arising out of their disability.

Example

Ms Griffiths, the employee, was an administrative officer and had worked for the Department for Work and Pensions (DWP) for 35 years. In 2009 she began to experience symptoms of her disability and in 2011 she was diagnosed with post-viral fatigue and fibromyalgia. The DWP’s attendance management policy triggered disciplinary actions when absence reached eight working days in a 12-month period. However, the policy provided that the consideration point could be extended as a reasonable adjustment for disabled employees.

In May 2011 following a block of 62 days absence, Ms Griffiths received a formal written improvement warning in line with the policy. No extension was granted in view of her disability. Ms Griffiths brought a grievance in which she claimed that the DWP had failed in its duty to make reasonable adjustments. She suggested that the DWP should have made two adjustments to take account of her disability:

  • that the written warning should have been withdrawn, because this absence related to the period when the disability was first diagnosed and a treatment plan was put in place; and
  • that the policy should be modified to allow her in future to have longer periods of absence before she faced the risk of disciplinary sanctions.

Ms Griffiths’ grievance wasn’t upheld and neither of the adjustments made. Ms Griffiths brought a claim for disability discrimination due to failure to make reasonable adjustments. She argued unsuccessfully that the DWP should have made the following two reasonable adjustments to remove the disadvantage:

  • The 62 day absence should have been treated as exceptional absence under the attendance policy and disregarded such that the written warning would have been revoked; and
  • The consideration point should have been extended by an additional 12 days with the effect that no disciplinary action would be considered until after 20 days’ absence.

The Court dismissed her appeal. However, the Court held that disabled employees could be put at a substantial disadvantage by an absence policy if an employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions. The Court explained that a disabled employee whose disability increases the likelihood of absence from work on ill health grounds, is disadvantaged in more than a minor or trivial way.

The Court decided that the correct approach was to determine whether the provision, criterion or practice (PCP) in this case an absence policy, put the disabled person at a substantial disadvantage in comparison with a non-disabled person. The duty to make reasonable adjustments arises once there is evidence that the PCP places the disabled person at a substantial disadvantage because of their disability. It will not matter if both the disabled and non-disabled are treated equally if the application of the PCP affects the disabled employee more.

In relation to the facts of this case, however, the Court of Appeal concluded that it was not reasonable for the DWP to ignore the original 62 day disability-related absence and revoke the written warning. In so doing they took into account:

  • that this was not a one off condition;
  • further periods of potentially lengthy absence could arise; and
  • the absence itself was eight times more than what the permitted annual absence policy envisaged.

The Court also dismissed as unreasonable the proposed adjustment that future absences should be treated differently by extending the trigger point.