It was recently revealed that the Department for Work and Pensions (DWP) has lost more disability discrimination cases than any other UK employer. This statistic is particularly remarkable given that the Equality Act 2010 requires public sector bodies to be especially mindful of countering discrimination. However, the DWP is far from being the only UK employer that needs to improve upon its awareness of disability discrimination in the workplace.
The Equality Act defines a disability as a physical or mental impairment that has a ‘substantial’ (defined as ‘more than trivial’) and long-term adverse effect on a person’s ability to carry out normal daily activities. ‘Long term’ means lasting for more than 12 months, including where symptomatic episodes last less than 12 months but the condition is likely to recur in the future.
Many common ‘invisible’ medical conditions can be captured by this definition, including arthritis, back pain, depression, anxiety and fibromyalgia. Therefore, employers need to be aware that disability may need to be considered even where an employee is not obviously disabled and may not have declared they are.
Employers are legally required to consider making reasonable adjustments to aspects of a job or workplace that place a disabled person at a substantial disadvantage. This includes any ‘provision, criteria or practice’ that would place an employee at this disadvantage, and can include policies or policy enforcement that impact more on a disabled employee as a result of their disability or something arising from the disability. Employees cannot be compelled to declare disabilities to their employer; however, in some cases lack of knowledge can be raised as a defence for the employer. This is not a cast-iron defence as the employer may be deemed to have imputed knowledge, and therefore employers should not ignore warning signs.
The duty to make reasonable adjustments for disability prevails throughout employment. This means that whether employers first become aware of a disability during the probation period, or during the advanced stages of a disciplinary process, the duty not to discriminate and to consider reasonable adjustments still applies.
Excello Law recently acted for a former NHS worker who was dismissed by the NHS because of a compulsion, caused by one of her disabilities, which caused her to frequently check when her medical appointments were. In Miss S J Austin v The Leeds Teaching Hospitals NHS Trust, the claimant’s employer commenced an investigation, which increased her already high anxiety. Because of her anxiety, in the face of lengthy delays and no updates she pushed for more information on the investigation from her line manager. As a result of this she was suspended, an act that was found to be discrimination in itself.
The tribunal found that the dismissal was unfair as the claimant “had no way of knowing that her actions were prohibited or could lead to dismissal” and the conduct for which she was dismissed “was not culpable or blameworthy”.
Additionally, the tribunal found that the employer had failed to take into account her health or disability at any stage of the process. The tribunal, therefore, further determined that both her suspension and dismissal were down to something arising from the complainant’s disability, namely her “pestering” for information and her need to compulsively check her medical appointment times. This amounted to disability discrimination.
This case underlines the importance of proper, impartial processes and of approaching the circumstances of each case with an open mind. In this case, the process followed by the employer was heavily criticised, as the investigators and decision-makers failed to properly investigate or consider the relevant matters. They also entered the process with closed minds and came to conclusions that were perverse and unreasonable.
When considering discipline or dismissal of an employee, employers should tread carefully to avoid discrimination cases, where the damages that can be awarded are unlimited. Compliance is best secured by genuinely and scrupulously following fair and impartial processes; investigating and considering all relevant evidence and factors. Even when the issues do not seem to be related to an employee’s health condition at first glance, employers should carefully consider the employee’s health or disability at all stages of the process and how this may have affected them in respect of the matters they are accused of.
Louise Brown is a specialist employment lawyer and Carole Spencer is a specialist employment paralegal at Excello Law