The current public health crisis has elevated risks to employers in respect of managing those members of their workforce who have a disability, as defined under the Equality Act 2010. Last year, guidance was issued by Public Health England on protecting those who were considered ‘clinically extremely vulnerable’ and more than 1.2 million people received a letter from the government instructing them to shield.
There is overlap between the legal definition of disability and what constitutes ‘extremely vulnerable’. Some of those classed as vulnerable, such as those with cancer or multiple sclerosis, will clearly be classed as disabled; ie they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. However, some workers who were advised to shield in 2020 would not meet the legal definition. For example, those with mild asthma or respiratory conditions may not have a condition that substantially affects day-to-day activities.
Employers must therefore be wary of inadvertently treating employees who qualify as disabled less favourably because of their need to shield, unless they are able to demonstrate that such treatment is a proportionate means of achieving a legitimate aim. Accordingly, it is anticipated that there will be an increase in the volume of disability-related discrimination cases post Covid.
Hill v Lloyds Bank
In this case, a claimant’s claim of disability discrimination arising from her employer’s failure to make reasonable adjustments was allowed, albeit in part. The claimant had been on sick leave for more than a year for reactive depression and stress (which qualified as a disability), caused by bullying and harassment by certain colleagues.
As a ‘reasonable’ adjustment, the claimant requested her employer give an undertaking that she would not be required to work with certain people or, if this was not feasible, that the claimant be paid a severance package. However, her employer only offered reassurance that she would not have to work with them.
The tribunal ruled that such refusal of a specific undertaking constituted a failure to make reasonable adjustments that put the claimant at a disadvantage compared to non-disabled people. This case illustrates just how wide ‘reasonable’ adjustments could actually be.
Shah v TIAA
This case, by contrast, demonstrates the limit on the employer’s duty to make a reasonable adjustment. The claimant, an audit manager who was required to travel to client locations across the UK, developed severe back pains, which qualified as a disability.
The claimant’s salary was calculated by reference to the number of trips she made to clients and, accordingly, when the claimant was unable to travel as much, the profits she was able to yield diminished relative to her salary. Working from home would not have been profitable for the employer and there were insufficient clients to service nearby the claimant.
The claimant was dismissed on grounds of capability and made a claim that her employer failed to discharge its obligation to make reasonable adjustments. The tribunal rejected the claim on the basis that it would not be reasonable for the employer to make such an adjustment, which would result in a loss to the company.
The claimant then appealed on the ground that her employer did not consider reducing her hours and relative pay. This argument was rejected as the claimant, at that time, had not proposed this and had not wanted a reduction in pay, and the fact that this possibility was not considered by either the claimant or her employer sooner suggested that it was not reasonable.
In this unprecedented time, it remains to be seen how employment tribunals will look back on employers’ actions in 2020 in respect of their disabled workers and what constitutes a reasonable adjustment in light of Covid, but it is likely that this area will generate more case law this year.
Adam Penman is an employment lawyer at McGuireWoods' London office