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Disability discrimination update (2)

This report relates to 30 case(s)

This article, the second in a two-part series on disability discrimination, looks at some of the recent key disability discrimination judgments.

Key points

  • Where less favourable treatment occurs because of an employer's generalised or stereotypical assumptions about a disability or its effects, this is likely to be direct discrimination.
  • When considering whether the duty to make reasonable adjustments arises, the DDA does not require a comparison to be made with non-disabled people in general; instead the focus should be on the disadvantage caused by the employer's provision, criterion or practice.
  • When addressing the duty to make reasonable adjustments, an employer should consult with the disabled person and properly assess what adjustments may be required.
  • Employers should record disability-related absences separately from non-disability-related absences and ensure that policies are in place to address any reasonable adjustments that may be required in relation to sickness absence.
  • It will be rare (although not impossible) for the DDA to require that an employer give "enhanced" sick pay as a reasonable adjustment, provided that all reasonable adjustments have been made to enable the disabled employee to remain in the workplace, and time off for rehabilitation, if necessary, has been given.

Part 1 of this series (See Disability discrimination update (1)) looked at some of the recent changes to the Disability Discrimination Act 1995 (DDA), which aims to end the discrimination that many disabled people face in employment and other areas. A hugely complex piece of legislation, the DDA continues to generate many issues for reflection and debate, so it is no surprise that case law under it continues to develop at a fair pace. This article explores some of the recent key disability discrimination judgments and considers the implications of these decisions for employers.

Definition of disability

The DDA protects only those individuals who are disabled within the meaning of s. 1 of the Act. Section 1(1) of the DDA provides: "Subject to the provisions of Sch. 1, a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities." This definition is subject to provisions in Schs. 1 and 2 to the DDA and is supplemented by Regulations and by guidance(Disability Discrimination Act: Guidance on matters to be taken into account in determining questions relating to the definition of disability) issued by the secretary of state under s.3 of the DDA. Although the definition of disability merely provides a gateway into the Act, it remains one of the most complex aspects of the DDA and is the subject of the majority of appeals to the EAT.

Excluded conditions

The Disability Discrimination (Meaning of Disability) Regulations 1996 (SI 1996/1455) exclude specified conditions from the scope of the DDA by deeming that they are not "impairments" for the purposes of the Act. Excluded conditions include "a tendency to physical or sexual abuse of other persons" and "exhibitionism".

The EAT in Edmund Nuttall Limited v Butterfield [2005] IRLR 751, referring to a previous EAT decision in Murray v Newham Citizens Advice Bureau Ltd [2003] IRLR 340, said that it was not helpful to refer to the exclusions as "free-standing conditions" as opposed to conditions that are the direct consequence of a physical or mental impairment within the meaning of s.1 (1). In Butterfield, the EAT recognised that a person can have both a "legitimate impairment" and an "excluded condition". The question in such a case is one of causation: what was the reason for any less favourable treatment? If the reason was the legitimate impairment then that is prima facie discrimination. However, if the reason for the treatment was the excluded condition and not the legitimate impairment, the claim fails. The fact that there is an underlying legitimate medical impairment does not mean that disability is a reason for the less favourable treatment. In this case, an individual experiencing depression (a legitimate impairment) developed a tendency towards exhibitionism (an excluded condition). He was dismissed when his employer found out about his convictions for indecent exposure. The reason for the dismissal was the employee's exhibitionism (and its results), so there was no unlawful discrimination.

Impairment

In Millar v Inland Revenue Commissioners [2006] IRLR 112, the Inner House of the Court of Session in Scotland ruled that it is possible to find that a person has a physical impairment without knowing the cause of the impairment. Shortly after a workplace accident, Mr Millar developed a variety of symptoms including a drooping eyelid (ptosis) and sensitivity to bright light (photophobia). He was dismissed after a significant period of absence. Mr Millar's symptoms could not be shown to be the result of a physical impairment, thus suggesting he had a psychological condition. Under the provisions of the DDA at the time (ie before amendments in December 2005), a mental impairment included an impairment resulting from or consisting of a mental illness only if the illness was "clinically well recognised". The Court of Session ruled that the cause of a condition, whether that cause is psychological or physical, is irrelevant where a tribunal is satisfied that a claimant's physical symptoms are sufficient to restrict his or her ability to carry out normal day-to-day activities. An impairment can be something that results from an illness as opposed to itself being the illness. Where the effects of an impairment are physical, the impairment should be considered physical. If it is a physical impairment, that is the end of the particular issue and the other requirements of the Act then need to be considered.

Mental impairment

In Dunham v Ashford Windows [2005] IRLR 608, the EAT held that "learning difficulties" could fall within the definition of mental impairment for the purposes of the DDA. Mr Dunham, who was dismissed from his job after three months, produced a report from a psychologist confirming that he had a very low IQ and a markedly weak short-term memory, and was unable to write even the simplest phrase or sentence of original output. The definition of disability at the time stated that a mental impairment included an impairment resulting from or consisting of mental illness "only if the illness is a clinically well-recognised illness". The EAT held that the words "only if the illness is a clinically well-recognised illness" applied only to mental illness and not to a case of mental impairment that was not, or did not consist of, mental illness. The claimant's generalised learning difficulties amounted to a mental impairment, but not one resulting from mental illness - so the additional "clinically well-recognised" test did not need to be addressed. The law has since changed in any event: where a mental impairment results from or consists of mental illness, it is no longer a requirement of the DDA that the illness be "clinically well recognised". This provision was repealed by the Disability Discrimination Act 2005 with effect from 5 December 2005.

The EAT held that a tribunal hearing a case involving a claimant with a mental impairment based on learning difficulties should look for expert evidence as to the nature and degree of the impairment and for evidence of a particular identified condition (which may have a specific or a generalised effect on function). It is unlikely to be sufficient for a claimant to put his or her case only on the basis that he or she had difficulties at school or is "not very bright". In this case, the evidence had identified a specific condition, namely borderline moderate learning difficulties that were generalised.

Further, although in these cases expert evidence is likely to be required, there is no requirement that it be provided by a doctor. In Dunham, a psychologist was a suitably qualified expert. What is important is that there is evidence from a suitably qualified expert who can speak, on the basis of his or her experience and expertise, as to the relevant condition.

Effect of medical treatment

Paragraph 6(1) of Sch. 1 to the DDA provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having the effect that it would have without the measures in question. The legislation says that "measures" treating or correcting an impairment include "medical treatment and the use of a prosthesis or other aid" (para. 6(2) of Sch. 1). This important provision gives the definition much greater breadth than would otherwise be the case.

In Carden v Pickerings Europe Ltd [2005] IRLR 720 the EAT considered whether or not a plate and pin that had been inserted in the claimant's ankle some years previously following a fracture were "measures" whose effect was to be ignored in assessing his ability to carry out day-to-day activities. The correct approach was to consider whether the plate and pins were providing continuing support or assistance in the functioning of the ankle (in which case they would be "measures") or whether they had served their purpose and had simply been left in the ankle because there was no need to remove them. Treatment whose effect has ceased is not relevant.

Recurring effects

Paragraph 2(1) of Sch. 1 to the DDA provides that the effect of an impairment is long term if: it has lasted at least 12 months; is likely to last at least 12 months; or is likely to last for the rest of the life of the person affected. Paragraph 2(2) goes on to provide that, where an impairment ceases to have a substantial adverse effect on the person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect, if that effect is likely to recur.

In Crossingham v European Wellcare Lifestyles Ltd [2006] All ER (D) 279 (Oct) EAT the EAT considered the issue of recurring effects. The employee went off sick with recurrent depressive disorder. During periods from February 2004 until July 2004, and from February 2005 onwards, the effect of the condition was most severe and the impairment had a substantial adverse effect on his ability to carry out normal day-to-day activities. He alleged that in the period from August 2004 to March 2005, the employer had failed to comply with a duty to make reasonable adjustments. The employment tribunal decided that between February 2004 and July 2004, and again from February 2005 onwards, the employee was disabled within the meaning of the DDA. It also held that he was to be treated as disabled during the intervening period on the basis that the substantial adverse effect was likely to recur, having done so in February 2005.

On appeal, the EAT considered the application of para. 2(2) of Sch. 1, and followed the decision in Swift v Chief Constable of Wiltshire Constabulary [2004] IRLR 540, in which the EAT held that the question for the tribunal was whether or not the substantial adverse effect was likely to recur, not whether or not the illness was likely to recur. In Swift, it was not a requirement that the mental illness itself was likely to recur. The Act contemplated that an illness might run its course to a conclusion but leave behind an impairment that might again have a substantial adverse effect. However, the effect should be a recurrence of the earlier effect. A substantial adverse effect resulting from a different impairment would not properly be described as a recurrence. Additionally, in Crossingham, the tribunal had also been entitled to look, with the benefit of hindsight, at the actual recurrence to find there was likely to be a recurrence as at August 2004. The employer's appeal was dismissed.

Evidence

In Heatherwood & Wrexham Park Hospitals Trust v Beer EAT/0255/06, the employment tribunal accepted evidence from a doctor to the effect that, as at April 2004, the claimant had a mental impairment and had had one since March 2003. On appeal, the EAT rejected the employer's submission that the effect of the employee's impairment was not a "long-term" effect because it was not until 16 May 2003 that the claimant's GP had first certified her as being unfit to attend work. The EAT stressed that a statement by a general practitioner that somebody is fit to work does not prove that the person concerned is not disabled.

Normal day-to-day activities

The question of "normal day-to-day activities" was considered in Vance v Royal Mail Group plc t/a Royal Mail EATS/0003/06. Mr Vance, a postman, had osteoarthritic changes in his right hip and chronic back pain. He was dismissed on grounds of ill health and claimed that he had been discriminated against on grounds of disability. An employment tribunal found that he had not shown that he was disabled within the meaning of s.1(1) of the DDA. Before the EAT, Mr Vance argued that the tribunal had failed to take account of the fact that he could not kneel or bend down to pick an item off the floor, which meant that he could not do the normal day-to-day activity of housework. It was, however, uncontested that Mr Vance did no housework because he hired his niece to do it. The EAT rejected Mr Vance's argument that where a person does not, as part of his or her daily life, carry out an activity that is normal for others, the person is to be treated as disabled if he or she would not be able to do it.

Sickness and disability

Chacón Navas v Eurest Colectividades SA [2006] IRLR 706 was the first case to be considered by the European Court of Justice (ECJ) on the disability aspect of the Employment Framework Directive 2000/78/EC. Ms Chaón Navas was certified as unfit to work on the grounds of sickness and was not in a position to return to work in the short term. After she had been absent for nearly eight months, her employer gave her written notice of dismissal, without stating any reasons, although at the same time it acknowledged that the dismissal was unlawful under Spanish law and offered her compensation. Ms Chacón Navas brought an action against her employer, maintaining that her dismissal was not valid as it was discriminatory. She sought an order that the employer reinstate her.

Under Spanish law, sickness is not expressly referred to as one of the grounds of prohibited discrimination. It was the view of the Spanish court hearing the case that there is a causal link between sickness and disability and that, given that sickness is often capable of causing an irreversible disability, workers must be protected in a timely manner under the prohibition of discrimination on grounds of disability. It referred the matter to the ECJ.

The ECJ considered that the question being asked was whether the general framework laid down by the Directive for combating discrimination on grounds of disability confers protection on a person who has been dismissed by his or her employer solely on grounds of sickness. On this issue, the ECJ held that "disability", in the context of the Directive, must be understood as referring to a limitation that results, in particular, from a physical, mental or psychological impairment and hinders the person's participation in professional life. By using the concept of "disability" in the Directive, the legislature deliberately chose a term that differs from "sickness", and the two concepts cannot simply be treated as being the same. The importance that the European Community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time. For the limitation to fall within the concept of disability, it must therefore be probable that it will last for a long time. There is nothing in the Directive to suggest that workers are protected by the prohibition on grounds of disability as soon as they develop any type of sickness.

The Spanish court that made the reference also suggested that, should it be concluded that disability and sickness are two separate concepts and that European Community law does not apply directly to sickness, sickness should be added to the attributes in relation to which the Directive does prohibit discrimination. The ECJ rejected the suggestions of the referring court and held that the scope of the Directive could not be extended beyond discrimination based on the grounds listed exhaustively in art. 1.

The ECJ did, however, clarify the relationship between the prohibition of discrimination and the reasonable accommodation provisions in art. 5 of the Directive. It stated that, in respect of dismissal, the prohibition of discrimination on grounds of disability contained in the Directive precludes dismissal on grounds of disability where, in light of the obligation to provide reasonable accommodation for people with disabilities, it is not justified by the fact that the person concerned is not competent, capable and available to perform the essential functions of his or her post.

Discrimination by association

The ECJ will be given a further opportunity to consider the disability aspects of the Directive in Coleman v Attridge Law [2006] ET/2303745/05, the first reference from a UK court or tribunal. The case concerns a woman who claimed constructive unfair dismissal and disability discrimination. Her claim of disability discrimination was based not on her own disability, but on the fact that she is the carer of a disabled person - her son. The tribunal ordered that the following questions be referred to the ECJ for a preliminary ruling.

  • In the context of the prohibition of discrimination on grounds of disability, does the Directive protect from direct discrimination and harassment only those persons who are themselves disabled?
  • If the answer to the first question is no, does the Directive protect employees who, though they are not themselves disabled, are treated less favourably or harassed on the ground of their association with a person who is disabled?
  • Where an employer treats an employee less favourably than it treats or would treat other employees, and it is established that the ground for this treatment is that the employee has a disabled son for whom the employee cares, is that treatment direct discrimination in breach of the principle of equal treatment established by the Directive?
  • Where an employer harasses an employee and it is established that the ground for the treatment of the employee is that the employee has a disabled son for whom the employee cares, is that harassment a breach of the principle of equal treatment established by the Directive? The respondent has appealed the decision of the tribunal to refer these questions to the ECJ.

Other

In Whitbread Hotel Co Ltd v Bayley EAT/0131/06, the EAT accepted that an unchallenged expert diagnosis of severe dyslexia, albeit five years old, was sufficient to establish that an individual was disabled under the DDA. It would still be open to examination whether or not the methodology used to arrive at a clinical diagnosis of severe dyslexia was correct. However, once it is accepted that there is severe dyslexia, there is a disability within the meaning of the DDA.

In Ginn v Tesco Stores Ltd EAT/0197/05, the EAT explored the correct approach to take when considering the effects of more than one impairment. It held that, where a person might have several impairments, any of which alone would not have a substantial effect, account should be taken of whether the impairments together have a substantial effect overall on the person's ability to carry out normal day-to-day activities. The EAT highlighted that the statutory guidance on the definition of disability makes no suggestion that the conditions need relate to each other - it is simply a case of adding up the component parts to see whether the sum amounts to more than the individual parts.

In Hill v Clacton Family Trust Ltd [2005] All ER (D) 170 (Oct) CA , the claimant argued that the fact that she was in receipt of disability living allowance was compelling evidence of her disability. The EAT and the Court of Appeal correctly stated that the test for entitlement to disability living allowance is different from the test for disability in the DDA. In this case, although the claimant was entitled to disability living allowance, she did not meet the definition in the DDA. The employment tribunal was entitled to reach its own conclusion on the question of disability on the totality of the evidence before it. A decision of the Social Security Appeal Tribunal is not conclusive evidence of disability for the purposes of the DDA.

Direct discrimination

On 1 October 2004 the Disability Discrimination Act 1995 (Amendment) Regulations 2003 (SI 2003/1673) amended the DDA to introduce the concept of direct discrimination at s.3A(5).

An employer directly discriminates against a disabled person if, on the ground of the disabled person's disability, it treats the disabled person less favourably than it treats or would treat a person not having that particular disability whose relevant circumstances, including his or her abilities, are the same as, or not materially different from, those of the disabled person. Importantly, less favourable treatment that amounts to direct discrimination cannot be justified (s.3A(4) of the DDA). Initial cases exploring these provisions have highlighted the risks to employers of applying "blanket ban" policies and making assumptions about a disability.

The first direct discrimination case supported by the Disability Rights Commission (DRC) to be considered by the employment tribunals was Tudor v Spen Corner Veterinary Centre Ltd and another [2006] ET/2404211/05. The claimant, Miss Tudor, had been employed as a veterinary nursing assistant and receptionist for a year when she had a mini-stroke. While she was in hospital, her eyesight deteriorated and she was informed that she had gone blind. As the blindness had been caused by a traumatic optic neuropathy, her consultant was unable to advise her if or when she might recover her sight. Within days of her employer being informed that Miss Tudor had lost her sight, it had prepared her P45 and backdated it to two days before the news had been communicated to it.

The tribunal, which made reference to the DRC Code of practice on employment and occupation, was satisfied that generalised and stereotypical assumptions were made about Miss Tudor, the duration of her disability and its effects. At the time of dismissal, her employer had no means of knowing whether or not Miss Tudor would make a recovery. It did not hold a meeting, did not seek input from her and made no proper enquiries as to what reasonable adjustments might be made, before taking the decision to dismiss.

It was accepted that an appropriate comparator could be an employee who had broken her leg, where this caused her to be unable to work and it was unclear when she might be able to resume work. The tribunal stated: "In respect of such an individual we do not consider that the respondents would have made stereotypical assumptions of their likelihood of recovery or their ability to do their job again. Further, the respondents would not have been so quick to rush to judgment without a proper consideration of all the relevant circumstances."

The comparator issue was also explored in High Quality Lifestyles Ltd v Watts EAT/0671/05 - the first case dealing with the direct disability discrimination provisions to be considered by the EAT. Mr Watts, who was diagnosed as HIV positive in June 2000, had been employed by High Quality Lifestyles Ltd as a support worker since March 2004. The employer provided specialist services to people with learning disabilities. On occasion, its support workers had been scratched and bitten by service users in the course of their duties. Mr Watts did not disclose his condition to his employer until around July 2004 and, when he did so, he was suspended. The employer obtained further information from Mr Watts' medical consultant and a general risk assessment in relation to the risk of transmission of communicable diseases in the workplace in question. Mr Watts was subsequently dismissed.

His claims of direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments were successful before the employment tribunal. On appeal, while the EAT upheld the tribunal's decision in respect of the disability-related discrimination and reasonable adjustments claims, it allowed the employer's appeal against the decision on direct disability discrimination.

The EAT held that the issue relating to the claim of direct discrimination was whether the employee had been suspended and dismissed because of the condition itself or because of the risk of its transmission to others. The tribunal's findings of fact in that respect were inconsistent and, in any event, it had erred in failing to impute relevant circumstances to the hypothetical comparator for Mr Watts. It seems that the tribunal adopted the position that the HIV positive condition could not be separated from its effects and that there was an "inescapable causal link" between the disability and the decision to dismiss. Had it been satisfied that the condition itself, rather than its effects, had led to the less favourable treatment in question, it would have legitimately concluded that direct disability discrimination had occurred.

The EAT stated in general terms that direct disability discrimination was a "more exact and narrower" concept than disability-related discrimination. The tribunal had erred in failing to identify the relevant circumstances and had then failed to construct an appropriate hypothetical comparator. Had this been done, it would have become apparent that the employer was concerned about the risk of transmission of the condition to service users. Anyone in a similar situation, for example someone with hepatitis or tuberculosis, would also have been dismissed. It appears that the tribunal's failure to identify a comparator arose from its difficulty in separating the condition from its effect. However, this is not an insurmountable obstacle in direct discrimination claims, as Tudor has already demonstrated.

Reasonable adjustments

The concept of reasonable adjustments is unique to the DDA and lies at the heart of the Act. The duty to make reasonable adjustments arises where a provision, criterion, practice or physical feature of premises places a disabled person at a substantial disadvantage. Recent case law has clarified how the duty works in practice.

Comparator

In Smith v Churchills Stairlifts plc [2006] IRLR 41, the Court of Appeal clarified the proper approach to be taken in reasonable adjustments claims, providing a useful framework for analysing the duty to make reasonable adjustments in practice. This case is the leading authority on the issue of the correct comparator for establishing whether or not the duty to make reasonable adjustments arises.

Mr Smith has lumbar spondylosis and consequently is unable to lift or carry heavy objects. He applied for a job selling radiator cabinets and was offered a position on a training course, satisfactory completion of which would have led to a sales job. Before the course commenced, the company decided that the sales force would be required to carry a full-sized radiator cabinet as a sales aid, because it believed that this would help convert more leads into sales. The company concluded (correctly) that Mr Smith would be unable to carry the cabinet and withdrew his place on the training course. It refused to allow a trial period with alternate sales methods that dispensed with the need for a full-sized sample. The tribunal held that the duty to make reasonable adjustments had not arisen. It felt that Mr Smith was not at a substantial disadvantage compared to non-disabled persons, as the majority of the population would also have had difficulty carrying the sales aid.

The Court of Appeal held that the correct approach was to make comparison by reference to the disadvantage caused to Mr Smith by the employer's arrangements. Those arrangements were the requirement to carry the sales aid and/or the liability that the offer would be withdrawn if he was unable to do so. Thus, the proper "comparators" were those who successfully completed the training or those who were admitted on to the course.

On this basis, the arrangements placed Mr Smith at a substantial disadvantage in comparison with persons who were not disabled. The duty to adjust had arisen and the employer had failed to comply with the duty as it had not allowed Mr Smith to sell by other means.

The correct approach to the reasonable adjustments duty is first to identify the arrangements (or, since October 2004, the provision, criterion or practice) placing the disabled person at substantial disadvantage. This should be given a very wide meaning and can include the fact that a job offer is liable to be withdrawn if conditions cannot be fulfilled. Next, the proper comparator should be identified by reference to the disadvantage caused by those arrangements. The DDA does not require comparison with non-disabled people generally. Instead, the focus should be on the disadvantage (in this case, the withdrawal of the offer). The final step is to decide if it is reasonable for the employer to have to take any particular step by way of adjustment. This is an objective test; ultimately it is the tribunal's view of what is reasonable that matters.

Although the decision in this case was on the law as it stood prior to amendments that came into force in October 2004, the key messages still apply to the equivalent provisions in the DDA as amended.

Assessment and consultation

In the context of the reasonable adjustments duty, the DRC Code of practice on employment and occupation states that it might be reasonable for employers to have to take steps that are not among the examples given in the Act. The code states that these steps could include conducting a proper assessment of what reasonable adjustments may be required. However, the exact nature of any "antecedent" duty on the employer to take steps to establish what reasonable adjustments can be made is not clear.

A number of recent EAT decisions including Southampton City College v Randall [2006] IRLR 18 have supported the proposition previously established in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 566 that: "A proper assessment of what is required to eliminate the disabled person's disadvantage is . . . a necessary part of the duty imposed by s.6( 1) [the reasonable adjustments duty, now s.4A( 1)] since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done . . . The making of that assessment cannot, in our judgment, be separated from the duty imposed by s.6(1), because it is a necessary pre-condition to the fulfilment of that duty and therefore a part of it."

Mr Justice Keith, giving the EAT judgment in Cambridge, explained why this purposive construction was favoured: "There must be many cases in which the disabled person has been placed at a substantial disadvantage in the workplace, but in which the employer does not know what it ought to do to ameliorate that disadvantage without making enquiries. To say that a failure to make those enquiries would not amount to a breach of the duty imposed on employers by s.6( 1) would render s.6(1) practically unworkable in many cases. We do not believe that that could have been parliament's intention."

In Rothwell v Pelikan Hardcopy Scotland Ltd [2006] IRLR 24, the EAT found that consultation with the employee before dismissal is decided upon is essential. Mr Rothwell, who had Parkinson's disease, was dismissed after a period of sickness absence. There had been no consultation with him about whether he would be able to carry on working, and the occupational health report that the employer had obtained had not been discussed with him. A reasonable adjustment would have been to consult with Mr Rothwell and to gather as much information as possible to ensure that any decision to dismiss was taken against a background of full knowledge of all the relevant facts and of Mr Rothwell's own position regarding them.

However, in Tarbuck v Sainsbury's Supermarkets Ltd [2006] IRLR 664, the respondent, in its cross-appeal, invited the EAT to revisit and reconsider the question of whether the duty to make reasonable adjustments includes an antecedent duty on the employer properly to assess what adjustments could be made to eliminate the substantial disadvantage giving rise to the duty and, in particular, if a failure to consult with the disabled employee results in a breach of the duty.

The claimant - who has ulcerative colitis and depression, and who was being phased back into work following disability-related sickness absence - had successfully argued before the employment tribunal that the duty had been breached because the respondent had failed to consult with her in order to agree the particular steps to be taken to eliminate her disadvantage in the competition for jobs in the midst of a redundancy exercise. The EAT upheld Sainsbury's appeal, holding that a failure to consult about reasonable adjustments is not, in itself, a breach of the duty to make reasonable adjustments. Effectively, if no reasonable adjustments can be made, the employer will not have acted unlawfully by failing to consult the employee over the issue.

In Surrey County Council v Hay EAT/0710/05 - which was handed down at around the same time as Tarbuck - the EAT followed Cambridge and held that, even though there is no requirement to carry out a "formal risk assessment", an assessment that meets the facts of the situation must be made. Hay is, in fact, likely to come before the Court of Appeal in early 2007. It should be noted, however, that counsel appearing for Surrey County Council accepted that there was a duty on his client to carry out a proper assessment before dismissing an employee for a disability-related reason, so there was no argument before the EAT in this case as to whether or not Cambridge was correct.

The recent EAT judgment in London Borough of Barnet v Ferguson EAT/0220/06has cast further light on this debate. Judge McMullen, who also gave judgment on behalf of the EAT in Hay, confirms in Ferguson that: "[In Hay] we followed [Cambridge] for there was no argument as to whether it was correctly decided . . . We would as a matter of practice respectfully follow the judgment of the president and members in Tarbuck if it were necessary for us to do so rather than add to the disagreement . . . we would need very strong persuasive arguments against it if we were not to follow it." In fact Ferguson was decided without the EAT having to deal with the Tarbuck issue but, for the avoidance of doubt, McMullen J states: "If there is a failure to make adjustments when the [reasonable adjustments] duty applies then there will be a breach. Failure to assess ... may put an employer who does not do this at risk, but it is itself not a breach."

We are left with conflicting EAT authorities on this particular point, suggesting that this matter needs to be resolved by the Court of Appeal. In the meantime, there may be a natural temptation for employees to rely on Cambridge (by adopting the argument that assessment of adjustments is part of "taking such steps as it is reasonable" to take under the s.4A( 1) duty) and for employers to rely on Tarbuck. However, the impact of Tarbuck - even if correct - may not be as significant as it might initially appear. The DRC is not aware of any claims based wholly on a failure to make an assessment when adjustments have, in any event, been made. A claim that an employer failed to make an assessment would almost inevitably be accompanied by a claim that the employer failed to make one or more other specific adjustments. In practice, of course, it will be very difficult for an employer to assess what adjustments are necessary unless it consults with the disabled person and makes an assessment.

In fact, the EAT in Ferguson - despite stating that a failure to assess is not in itself a breach of the reasonable adjustments duty - warned that "it would be good practice and common sense for employers always to consider an assessment because if [they do] not it is likely that [they] will miss an important avenue and an important possibility of there being an adjustment that could reasonably be made to save the employee's job, at least to adapt it for his or her present condition".

Even in Tarbuck, the EAT stated: "There can be no doubt that any employer would be wise to consult with a disabled employee in order to be better informed and fully acquainted of all the factors which may be relevant to a determination of what adjustment should reasonably be made in the circumstances. If the employer fails to do that, then he is placing himself seriously at risk of not taking appropriate steps because of his own ignorance. He cannot then pray that ignorance in aid if it is alleged that he ought to have taken certain steps and he has failed to do so."

The clear message for an employer is to consult with the disabled person and assess what adjustments may be required.

Creating a new post

In Southampton City College, the EAT stressed that the examples of adjustments that could be considered reasonable, which are set out in the DDA, are examples only and not a comprehensive list. For instance, employers should not preclude from consideration the possibility of the creation of a new post in substitution for an existing post.

Reasonable adjustments on redundancy

The seminal case of Archibald v Fife Council [2004] IRLR 651 established that, if an employee is dismissed for a reason relating to his or her disability, the employer has a duty to redeploy him or her without competitive selection. More recently, the Court of Appeal in NTL Group Ltd v Difolco [2006] EWCA Civ 1508 has determined that, where there was no link between an employee's dismissal by way of redundancy and her disability, this duty did not arise. Mrs Difolco, who was partially paralysed and necessarily worked part time, was offered the chance to apply for an alternative position after being placed at risk of redundancy. The alternative job was advertised as a full-time post but Mrs Difolco was informed that the employer would consider changing the role to a part-time one should she be appointed following a selection process. Mrs Difolco felt unable to apply for the alternative position on the basis that it was not intended as a part-time post, and she claimed that her employer had failed to make a reasonable adjustment. Prior to October 2004, when this case arose, the duty to adjust was triggered where an "arrangement" placed an employee at a substantial disadvantage. (Following amendments to the DDA, the duty to make adjustments now applies to a "provision, criterion or practice" that places the disabled person at a substantial disadvantage.) Lord Justice Laws considered that, in these circumstances, the mere fact of advertising the job on a full-time basis did not constitute an "arrangement" under the DDA so, at that point, no duty to adjust had arisen.

Trust and confidence

In Greenhof v Barnsley Metropolitan Borough Council [2006] IRLR 98, the EAT held that where an employer was found to be in serious breach of the duty to make reasonable adjustments under the DDA, the tribunal was bound to hold that the employer had breached the implied term of trust and confidence. Mr Greenhof experienced clinical depression and resigned following pressure from his employer to accept a lesser role within the organisation. The council should have approached Mr Greenhof's doctor and its own occupational health experts to establish what duties he could not safely undertake. Since Mr Greenhof had resigned in response to his employer's fundamental breach of contract, he was entitled to claim not only that he had been discriminated against on grounds of his disability, but also that he had been unfairly dismissed.

The EAT acknowledged that there may be circumstances where a breach of the obligation to make reasonable adjustments does not amount to a repudiatory breach of contract, but did not go on to identify these circumstances. It will be a matter for a tribunal to determine, taking into account the seriousness of the employer's failure to make reasonable adjustments.

Sick pay and sickness absence

Employers and advisers continue to grapple with difficult questions concerning the application of the DDA to sickness absence and sick pay policies and practices. Recent case law has moved this debate on, and the developments in question merit careful analysis.

Most employers will be aware of the important case of Nottinghamshire County Council v Meikle [2004] IRLR 703, in which the Court of Appeal held that the reduction in the employee's sick pay by 50% after 100 days' absence from work amounted to discrimination under the DDA. The reason that Mrs Meikle was absent from work was because the employer had failed to make reasonable adjustments to facilitate her return. In these circumstances, the reduction in sick pay could not be justified.

Now, in Royal Liverpool Children's NHS Trust v Dunsby [2006] IRLR 351, the EAT has addressed the question of whether or not employers are required under the DDA to discount disability-related sickness absence from sickness absence calculations that may be used for a variety of purposes.

Mrs Dunsby was a staff nurse who suffered from gynaecological problems, migraines and depression. She had a number of absences, as a result of which the trust instituted its four-stage sickness absence procedure. At the stage-four hearing, she claimed that some of her absences were due to migraines caused by her gynaecological problems, and that these would not recur because her medication had changed, but was nevertheless dismissed on the basis of her absence.

An employment tribunal decided that her treatment amounted to disability-related less favourable treatment, which was not justified. It found that, if the employer had ignored her disability-related absences, Mrs Dunsby would not have been at risk of dismissal at the time that she was dismissed. On appeal, the EAT held that the provisions of the DDA do not impose an absolute obligation on an employer to refrain from dismissing an employee who is absent wholly or in part on grounds of ill health due to disability. The law requires such a dismissal to be justified, but a tribunal does not answer the question of whether or not a dismissal is justified merely by reference to the fact that it was, in part, because the employee was absent on grounds of disability. The EAT stated that it is rare for a sickness absence procedure to require disability-related absences to be disregarded. Whether, by taking disability-related absences into account, the employer treats the employee less favourably and acts unlawfully will generally depend on whether or not it is justified. There is no absolute rule that an employer acts unreasonably in treating disability-related absences as part of a totting-up review process or as part of a reason for dismissal on grounds of repeated short-term absences.

However, it must be noted that, unusually, this case did not address the duty to make reasonable adjustments to any extent. In many cases where sickness absence is an issue, the employee will argue that the employer should have made the reasonable adjustment of disregarding disability-related sickness. The DRC's Code of practice on employment and occupation, which must be taken into account where relevant, states at para. 8.25 that "it is likely to be a reasonable adjustment to discount disability-related sickness absence when assessing attendance as part of a redundancy selection scheme".

Indeed, it may still be necessary to consider discounting all or some disability-related absences in relation to:

  • disciplinary procedures;
  • performance appraisals, especially when linked to bonuses, ongoing professional development and pay rises;
  • references, as a high level of sickness absence in the past may not be any indicator of future attendance;
  • selection criteria for promotion; and
  • selection criteria for redundancy.

Importantly, disability-related less favourable treatment cannot be justified where a reasonable adjustment would have rendered the reason for the treatment no longer "material and substantial". Consequently, a tribunal would usually consider the duty to make adjustments before determining whether disability-related less favourable treatment was justified - something not done in Dunsby. Further, the question of whether there has been a reasonable adjustment has to be determined objectively, in striking contrast with the way in which the courts assess the question of justification with respect to disability-related discrimination. Dunsby should not detract from the central importance of the reasonable adjustment duty to the way in which sickness absence is treated.

In view of this, employers should ensure that disability-related absence is recorded separately and that policies are in place to address any reasonable adjustments that may be required in relation to sickness absence. Employers that are public authorities are subject to the disability equality duty, requiring them actively to promote equality of opportunity for disabled people. They will need to consider the impact that any sickness absence scheme has on disabled people's ability to achieve equality of opportunity.

A further vexed question is whether or not employers are obliged under the DDA to extend sick pay in circumstances where disabled employees are off work for disability-related reasons and where sick pay for every employee is reduced over a period of time. This issue was considered by a separate division of the EAT in O'Hanlon v The Commissioners for HM Revenue and Customs [2006] IRLR 840.

Mrs O'Hanlon had long periods of absence from work, most of which were related to her disability. Her employer's sick pay rules provided that employees were entitled to full pay for a maximum of six months in any 12-month period and half pay for a further maximum period of six months. This was subject to an overriding maximum of 12 months' paid sick leave in any period of four years. After that, employees were entitled to be paid the lesser of pension rate of pay or half pay, unless they had under two years' pensionable service, in which case the absence was unpaid.

Under this scheme, Mrs O'Hanlon had been on the pension rate of sick pay for all absences since October 2002. She raised a grievance on the basis that the absences caused by her depression should not be included in her overall sickness absence record when calculating sick pay. This was not upheld and she brought a claim to the employment tribunal based on a failure to make reasonable adjustments and disability-related less favourable treatment. She argued that she should have received full pay for all disability-related absences. Her secondary case was that she should have received full pay for all absences not related to her disability. The tribunal found that, although Mrs O'Hanlon was placed at a substantial disadvantage by her employer's sick pay rules, the adjustment she sought to address the disadvantage was not a reasonable one. In reaching this conclusion, the tribunal took account of evidence presented on the employer's behalf that the total cost of providing the adjustment in question in respect of all disabled employees would be almost £6 million per year. It also held that there was no disability-related less favourable treatment and that, even if there was, it was justified.

The EAT allowed Mrs O'Hanlon's appeal against the finding that there had been no disability-related discrimination, but upheld the tribunal's finding that the treatment was justified. It rejected the employer's cross-appeal against the finding that the sick pay rules placed Mrs O'Hanlon at a substantial disadvantage, but also dismissed Mrs O'Hanlon's appeal against the finding that the adjustment was not reasonable. Consequently, there had been no breach of the DDA.

On the reasonable adjustments issue, it had been appropriate for the tribunal to consider the potential cost of the adjustment if applied to all disabled people. Indeed, the EAT went on to consider whether a claim for full sick pay could ever be considered a reasonable adjustment. It stated: "It will be a very rare case indeed where the adjustment said to be applicable here, that is merely giving higher sick pay than would be payable to a non-disabled person who in general does not suffer the same disability-related absences, would be considered necessary as a reasonable adjustment. We do not believe that the legislation has perceived this as an appropriate adjustment, although we do not rule out the possibility that it could be in exceptional circumstances."

In reaching this conclusion, the EAT expressed reluctance to place tribunals in a position that might require them to usurp an employer's management function in situations that might result in significant financial and policy implications for the employer. Further, the EAT held that the purpose of this legislation is to assist disabled people to obtain employment and to integrate them into the workforce, and "not to treat them as objects of charity which, as the tribunal pointed out, may in fact sometimes and for some people tend to act as a positive disincentive to return to work".

The EAT allowed Mrs O'Hanlon's appeal against the finding that there was no disability-related less favourable treatment. The Court of Appeal's decision in Clark v TDG Ltd t/a Novacold [1999] IRLR 318 requires a comparison with someone who has not had the disability-related sickness absence. Such a person would not have experienced the loss of pay since he or she would not have been absent for over 26 weeks. However, the finding that the treatment was justified was upheld. The EAT stated that "if the objective test for imposing a reasonable adjustment to the sick pay policy did not bite, then there was never any real possibility that the more subjective test of justification would not be satisfied". It clarified that this is not inevitably so in all cases, but it was the case here where the same failure to pay full pay lay directly behind both discrimination claims.

While the EAT was correct to state that the focus of the DDA (particularly the duty to make adjustments) is on keeping disabled people in work, it did acknowledge that it would be wrong to say that adjustments to a sick pay scheme may never be required. Further, O'Hanlon does not dictate that paid time off - such as for a period of rehabilitation - may never be required. In general though, provided that all reasonable adjustments have been made to enable a disabled employee to remain in the workplace, and time off for rehabilitation, if necessary, has been given, an employer is likely to have fulfilled its obligations under the DDA. It is notable that in O'Hanlon the employer had made adjustments on three occasions to assist the employee in returning to work. Further, there was no suggestion that her absence could be attributed to any failure on the employer's part to take steps to assist her to return to work. This can be contrasted with Meikle where liability arose because of the failure to make reasonable adjustments to enable an effective return to work. These failures had rendered the subsequent failure to maintain full pay unjustified.

In all cases, the duty on employers to make all necessary reasonable adjustments to retain disabled employees retains vital importance.

The Court of Appeal explored the concept of "disability-related discrimination" in Taylor v OCS Group Ltd [2006] IRLR 613. Following an investigation into alleged misconduct, Mr Taylor, who is deaf, was invited to attend a disciplinary hearing. He was not provided with a sign language interpreter during the course of the hearing and, as a result, could not participate effectively and struggled to understand what was happening. At the end of the hearing he was dismissed. An appeal hearing was held at which Mr Taylor was represented by his sister. An interpreter was provided but was unable to stay throughout the hearing with the result that Mr Taylor's sister took over as interpreter for the remainder of the appeal. The decision to dismiss Mr Taylor was affirmed.

It was argued on behalf of Mr Taylor that the failure to provide an interpreter amounted to a failure to make a reasonable adjustment. This claim was successful and was not interfered with by the Court of Appeal. It was also argued that the decision to dismiss Mr Taylor constituted disability-related discrimination as it resulted, in part, from his communication difficulties, and he might not have been dismissed had the adjustment - the provision of an interpreter - been made.

However, the Court of Appeal applied a relatively narrow interpretation of "disability-related discrimination", deciding that a disability-related reason for the less favourable treatment must be present in and affect the employer's mind. The employer does not need to have had the disability itself in mind - only the disability-related reason. It was held that the reason for Mr Taylor's dismissal was his conduct. The employer's mind was not affected by a disability-related reason.

This was the case even though the Court recognised that, had an interpreter been present, or had Mr Taylor not been deaf, he might not have been dismissed. The Court held that this was not the issue. The issue was whether the employer had a disability-related reason in mind when dismissing. There was no evidence that this was the case (the reason for dismissal was conduct), so the disability-related discrimination claim was dismissed.

This case does not, however, impose a requirement to show that the employer had an intention to discriminate. An employer's mind can be affected consciously or subconsciously, and the disability-related reason need only have a significant influence on the employer's decision - it does not have to be the sole reason.

Knowledge

An employer has a duty to make adjustments only where it knows, or could reasonably be expected to know, that the employee has a disability. An employer's knowledge could also be relevant to the question of whether or not less favourable treatment is justified. In Department for Work and Pensions v Hall EAT/0012/05, the EAT concluded that there were enough factors to justify a conclusion that the employer was fixed with constructive knowledge of disability. This was the case even though the claimant had not specifically told the employer that she was disabled. In particular, the EAT took into account that: one of the interviewing panel had known Miss Hall for some time; she had submitted forms to her employer to apply for disabled person's tax credit; and managers were aware of and concerned by her "volatile and unusual" behaviour.

Statutory grievance procedures

The Employment Act 2002, Part 3 introduced statutory minimum grievance procedures. These apply where an employee has a grievance that could form the basis of a complaint to an employment tribunal under the jurisdictions listed in Schs. 3 and 4, which include disability discrimination.

Time limits

BUPA Care Homes (BNH) Ltd v Cann; Spillett v Tesco Stores Ltd [2006] IRLR 218 dealt with an important point of interpretation relating to time limits for discrimination claims. The key issue related to the interaction of the requirements to comply with the statutory grievance procedures, and the pre-existing limitation provisions to be found in other legislation - in this case, the DDA.

The new regime requires an employee who wishes to present a claim to a tribunal first to set out in writing the grievance upon which the claim is based and send a copy of this to the employer. Section 32(4) of the Employment Act 2002 provides that a complaint will not be considered where the employee complied with this requirement (step one of the statutory grievance procedure) more than a month after the end of the "original time limit" for making the complaint. Under para. 3 of Sch. 3 to the DDA, the primary limitation for a disability discrimination claim is three months, subject to extension where the tribunal considers it is just and equitable in all the circumstances.

In an important judgment, the EAT held that there is no absolute bar on a tribunal considering a discrimination complaint where a grievance was submitted more than four months (three months plus one month) after the act of discrimination complained of. The tribunal is still entitled to exercise its general discretion to consider a discrimination complaint outside of this time where it is just and equitable to do so. The EAT held that the "original time limit" in s.32(4) of the Employment Act 2002 is the period within which a complaint under the DDA may be considered by the employment tribunal, including any extension through exercise of its "just and equitable" discretion under para. 3 of Sch. 3 to the DDA.

Effectively, the tribunal's just and equitable discretion to extend time in the DDA (which follows the same formula as that in the other discrimination legislation) still applies. Section 32(4) of the Employment Act 2002 is not tantamount to an implied repeal of this discretion.

Grievance

The statutory grievance procedures also require that, if an employee subsequently brings a tribunal claim, the grievance statement made by the employee must relate to the claim being pursued. In Canary Wharf Management Limited v Edebi [2006] IRLR 416, the EAT considered whether the contents of a letter of complaint made by Mr Edebi amounted to a grievance for the purposes of the statutory grievance procedures. His letter detailed various complaints about unacceptable working conditions and the impact of these conditions on his health. However, the letter did not raise, even in a non-technical and unsophisticated way, an issue that the employer could reasonably understand had arisen under the DDA. Mr Edebi's letter was a generalised complaint, but did not refer to disability discrimination, identify any specific failures to make adjustments, or allege less favourable treatment. Mr Justice Elias held that "the objective of the statute can be fairly met if the employers, on a fair reading of the statement and having regard to the particular context in which it is made, can be expected to appreciate that the relevant complaint is being made". Mr Edebi's appeal against the decision that his claim was inadmissible was rejected.

Compensation

Although compensation for disability discrimination is unlimited, unfair dismissal compensation is subject to a statutory cap consisting of a maximum basic and compensatory award. In HM Prison Service v Beart (No. 2) [2005] IRLR 568 it was held that compensation for loss of earnings as a result of discrimination should not stop at the date of the unfair dismissal. Mrs Beart, who had depression, was dismissed following a period of sickness absence. It was held that the prison service had failed to make a reasonable adjustment by not relocating her in accordance with medical advice and that she had been unfairly dismissed. At a subsequent remedies hearing, the tribunal awarded her loss of earnings from the date on which the prison service should have relocated her until retirement age. She was also awarded damages for personal injury, injury to feelings and unfair dismissal. The prison service appealed to the EAT, arguing that the fact of her dismissal (even though it had already been shown to be unfair) terminated its liability for the disability discrimination. On that basis, it argued that all further losses from the time of dismissal had to be assessed as part of unfair dismissal compensation and should therefore be subject to the statutory cap. The EAT disagreed, holding that an employer cannot rely on one wrong (an unfair dismissal) to limit liability for another (failure to make the reasonable adjustment). The Court of Appeal upheld the EAT's decision.

This feature was contributed by Martin Crick, legal officer at the Disability Rights Commission and editor of its legal bulletin.