What Makes a Worker Disabled Under the Equality Act 2010?
Before an employer considers an employee disabled and is covered under the Equality Act 2010, an employer must first assess how the physical or mental impairment affects the employee’s ability to do normal day-to-day activities.
Some impairments are not seen in a person’s physique and additional tests may be required in order to come up with a sound evaluation. Read on to further understand what workplace disabilities are and how employees with disabilities can better cope with their work environment. We will also be discussing the legal implications concerning both employees and employers.
What makes a worker disabled under the Equality Act?
According to the Equality Act, if the answer is “yes” to these questions, then a worker is considered disabled:
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- Does the worker have a physical or mental impairment?
- Does that impairment have a negative impact on the worker’s ability to carry our normal day-to-day activities?
- Is the negative impact substantial?
- Is the impact long term (i.e. likely to continue for a year or more)?
There is an updated advice from the Department for Work and Pensions concerning the employment of disabled people.
Due to the coronavirus pandemic, the government came up with the Access to Work program. Now, people with disabilities will receive financial support as they work from home, or additional assistance if they continue to stay in the work-place. Details of this scheme can be read at gov.uk.
Aderemi V London and South Eastern Railway Limited Case Study
Mr. Aderemi was involved in an Employment Tribunal case with South Eastern Railway in 2012. Mr. Aderemi worked as a station attendant at London Bridge train station. His job required him to stand up, most of the time, by the ticket gates to inspect customers’ tickets.
Mr. Aderemi suffered from a back problem in late 2007. According to him, it was probably due to the long periods of time he spends standing as required by his job. Severe back pain caused him to be constantly absent from work from 2009 to 2010.
Mr. Aderemi would return to work after medical assessments considered him fit to work, provided that he limits his time standing and bending.
After two years of continuously working while still suffering from his back problem, Mr. Aderemi’s employer dismissed him with the reason that he was no longer fit to work that kind of job given his limitations.
Mr. Aderemi decided to take the matter to an Employment Tribunal (ET) where he complained that his dismissal from work was unjust. However, the ET thought otherwise and stated that Mr. Aderemi’s dismissal was not unfair and that, under conditions stipulated in the Equality Act, he was not “disabled”. They further argued that there were still activities that he could manage and that his back problem did not affect his ability to do normal tasks on a daily basis. The ET even enumerated day-to-day activities that Mr. Aderemi would be able to do.
Mr. Aderemi filed another complaint through the Employment Appeal Tribunal or EAT, which cited that the Employment Tribunal was wrong in listing the tasks that Mr. Aderemi could do instead of identifying tasks that he could not carry out. Such tasks included standing for long periods of time. The EAT also said that, under the Equality Act, tasks required by a job were not considered “normal day-to-day” activities. However, in Mr. Aderemi’s case, standing could be classified as a normal day-to-day activity because this is someone that a lot of other people do as well.
Banaszczky v Booker Case Study
Mr. Banasazczky worked as a picker and often lifted cases of goods weighing at most 25 kilograms. After suffering a back injury, Mr. Banaszczky could not keep up with his “pick rate” anymore and was, therefore, dismissed from work. His employer found him to be incapable. In 2016, he filed a case at the EAT citing that he was discriminated because of his disability. His employer, Booker, fired back claiming that he was not considered disabled because his back injury did not affect his ability to accomplish day-to-day tasks and that his job, “picking”, was not a normal daily activity.
The EAT eventually judged that Mr. Banaszczky was indeed disabled since he could not lift nor move heavy loads, activities that many people normally do on a day-to-day basis as part of their jobs.
Types of Disabilities
Addictions cover illnesses that resulted from an addiction. Examples are depression or liver damage caused by an addiction to alcohol. Also included are addictions that developed as a symptom or a side-effect of another medical condition. The Equality Act of 2010 excluded the following addictions:
- alcohol addiction
- nicotine addiction
- addiction to other substances not caused by prescribed drugs
Impairments classified under Mental Health include long-term personality disorders. Under this provision, employees are protected from discriminating comments against depression. An example of this instance is a company scenario where a director discriminated an employee suffering from depression. Ms. Wickers was told by her Director to “pull yourself together”, a comment considered to be discriminatory against a mental health disability. She was also advised of a possible dismissal because of her absences and tardiness. These incidents led to Ms. Wicker’s resignation.
This is in the Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians case and the company was judged as unsympathetic instead of making adjustments given Ms. Wicker’s condition.
Stress in this case refers to serious disorders such as clinical depression and anxiety. This does not include stress as a result of challenges in the work environment, which does not affect one’s ability to do normal day-to-day activities as an employee.
In 2016, the City of York Council v Grosset case details an incident where a teacher, Mr. Grosset, was dismissed from his job because he showed a film that was rated 18 to 15-16-year old pupils. The EAT discovered that Mr. Grosset suffered from cystic fibrosis, which was a disability, and his misconduct was a result of this disability. This is what the school failed to see because they did not have a record of Mr. Grosset’s medical condition that would have linked his misconduct to his disability. Instead, Mr. Grosset received unfair treatment and was given more workload, leading to stress. The EAT and the Court of Appeal, decided that Mr. Grosset’s mental health disorder was caused by his disability.
Conditions That Are Not Disabilities
There are certain conditions that are excluded as disabilities in the Equality Act. These include:
- tendency to steal
- tendency to set fires
- tendency to physically or sexually abuse others
Considering education provision, a non-employment related case in 2015 suggested that if the disability of an employee results in violent conduct against others, the employer has the right to dismiss the employee without being accused of discrimination. This is allowable given that the employer only takes actions against the violent conduct and not the employee’s disability.
The EAT maintained that tendency to steal is not a disability. In the Wood v Durham County Council case, both the ET and EAT decided that Mr. Wood, an Anti-Social Behavior Officer suffering from depression, post-traumatic stress disorder, and associative amnesia, was dismissed because of his tendency to steal and be dishonest during interrogations, and not because of his mental health, although these conditions fell under disability.
HIV/Aids, Multiple Sclerosis, Cancer
To prevent further effect on a person’s ability to carry out normal activities, HIV/Aids, Multiple Sclerosis, and Cancer are now treated as a disability from the moment of diagnosis.
Based on Lofty v Hamis 2018, the EAT found that a certain pre-cancerous form of skin cancer was a disability.
Mrs. Lofty was often absent for long periods of time because she was ill. The absences caused her to miss meetings about her case. The original Tribunal did not think she was discriminated nor dismissed unjustly because of her disability because they did not believe she had a disability at all. Mrs. Lofty appealed and eventually got the EAT’s favor. The EAT agreed that Mrs. Loft suffered a disability because she had been diagnosed with cancer, regardless of what stage it was and whether it was invasive or not.
Unlike cancer, other progressive conditions such as Motor Neurone Disease are considered a disability once these diseases affect a person’s ability to carry out day-to-day activities and impact their future.
This does not refer to obesity in itself but to other complications caused by being obese that lasts more than a year and hampers a person’s ability to do daily tasks.
Allergies and Skin Conditions
Allergies and skin conditions are considered a disability only if they affect a person’s ability to do normal day-to-day tasks long term. For instance, a severe allergy to nuts can fall under disability, but, hay fever, unless it complicates other preexisting conditions, is not considered a disability.
People with diabetes are given a diet program to help control this illness. Thus, diabetic patients often follow a certain menu and meal schedule and may have to take breaks from time to time. Employers should make allowances to a diabetic employee’s schedule in order to help the employee stick to his or her diabetic meal plan.
If an employee has Type II diabetes and controls this by not consuming food and drinks high in sugar, such as in the Metroline Travel Ltd v Stoute 2014, then that person is not considered disabled.
If menopause has a significant long-term effect on a woman’s ability to do daily tasks, then these physical complications can be considered a disability.
Stammering and Dyslexia
Dyslexia and stammering, in some cases, fall within the definition of a disability.
One manifestation of dyslexia is having trouble reading and writing. Statistics show that one in ten people have a certain form of dyslexia that also, somehow, affects his or her memory, organisational skills, and problem-solving skills, especially in math. Given these facts, employers may be required to make necessary adjustments for applicants or employees with dyslexia. These could include making the font larger and increasing the line spacing in printed materials given, allotting more time for the materials to be read, and allowing companions for the applicant or the employee.
In February 2016, an employee working as a supervisor at a Starbucks branch in Clapham, London filed a discrimination case against her employer and won. Part of the employee’s job was to monitor refrigerator and water temperatures at certain intervals and record them in a chart. Since Kumulchew, the employee, was dyslexic, she had a tendency to have discrepancies in her entries. Despite knowing Kumulchew’s dyslexia, her employer still accused her of falsifying documents and started decreasing her work load and asked her to undergo retraining. These made Kumulchew feel suicidal and discriminated against. The Tribunal sided with Kumulchew and expressed that, not only did Starbucks discriminate Kumulchew, but it also failed to implement adjustments that would have made working easier for her.
How does an employer “know” if an employee is disabled?
Employers are required to make “reasonable adjustments” if an employee is found to have a condition that falls under a disability. However, this is just not possible if the employer has no knowledge of the employee’s disability or that the disability has any effect on his or her ability to do certain tasks.
If an employee’s disability is readily seen based on circumstances or if the employer does know that an employee is disabled, then making reasonable adjustments should be fairly easy. However, in other cases, such as in mental health issues, the disability is not that obvious making matters more complicated. If an employee suffers from a form of mental disorder, the employer may not be aware of this, may not understand how this can affect the employee’s job, or how long this has been going on.
Employers are required to take reasonable action in order to know whether an employee is disabled or not. This could mean coordinating with the employee’s physician and asking for an Occupational Therapist’s help.
Donelien v Liberata
In a case in 2015, Donelien v Liberata, Ms. Donelien did not cooperate with an occupational health provider. This made it difficult for Liberata to cite tasks that she can and cannot do. The Employment Appeal Tribunal said that if an employer is not aware that an employee has a disability, then the employer is not required to make reasonable adjustments.
Lamb v Garrard Academy
In the Lamb v The Garrard Academy case of 2019, the Academy claimed that it only became aware that Ms. Lamb’s depression was a disability in November 2012, when an occupational health report was submitted to them. The Academy said that it knew that Ms. Lamb had depression, but did not know that it was long term.
Ms. Lamb’s complaint was for the Academy’s failure to make reasonable adjustments. The Academy’s rebuttal was that it did not yet have knowledge of Ms. Lamb’s condition (not until November 2012), the reason for it not being able to make reasonable adjustments.
The EAT said that there were already records showing that Ms. Lamb’s illness would be long-term prior to July 2012. Therefore, the Academy did not make timely adjustments.
In 2018, the EAT saw a possible discrimination against a police offer because the employee suffered from loss of hearing. The employee would not have qualified for recruitment, however, after passing a “function” test, a job was offered.
Seeing the possibility that her hearing loss would worsen, the employee’s application to be transferred to another force was rejected. The police force reasoned that her hearing level was below standard. This is what the EAT believed was an outright discrimination of an employee’s disability.
Baldeh v Churches Housing Association
In 2019, Mrs. Baldeh’s employer dismissed her from work after six months of being under probation. They cited her communication methods and performance as the reason for her dismissal. The EAT said that, although Mrs. Baldeh’s employer was not aware that she had a disability, they were provided this information during the dismissal appeal. The housing association, her employer, should have considered this during the internal appeal. Mrs. Baldeh said that she had depression which caused her odd behavior and utterances of inappropriate remarks. In other words, her actions, which were the reasons for her dismissal, were because of her disability. Cases such as these show that it is important for employers to work with health experts, such as occupational therapists, in order to make sound decisions when it comes to employees’ disabilities. Health experts will be able to guide them into what action to take and what adjustments can be made.
Tesco Stores Ltd v Tennant
In 2020, the Employment Appeal Tribunal decided that when an employee files a disability discrimination case, he or she must establish that the disability has a long term effect during the time when the discrimination was committed.
For instance, Ms. Tennant had depression and was on sick leave from September 2016. She filed a claim on September 2017, saying she had suffered discrimination against her disability, citing acts done since September 2016. However, Tesco appealed and said that Mrs. Tennant was not disabled at the time of the commitment of the discrimination. The EAT agreed and reiterated the rule that discrimination against a disability can only be filed if the employee is already disabled during the time of the discrimination and not when the claim was filed.
It is clearly stated in the Equality Act that employers are required to make reasonable adjustments in order to take into consideration an employee’s disability and allow the employee to carry out tasks required by his or her job. This may include flexible work hours, time off to go on treatment sessions, and adjusted work load, or providing technical aids, or training or mentoring assistance.
If the employer decides to allow the employee to have time off for treatment, the employer will also have to decide whether the days off will be paid or not. When making this decision, the employer might consider looking into the employee’s contract, as well as consider their financial standing. Some employees are paid even when they go for medical consultations or treatment, but, again, this decision rests upon the employer.
Should an employer pay for treatment?
Butcher was employed as a Finance and Reception Manager at a veterinary clinic. Butcher felt that he was overworked, stressed, suffered depression, and often went on long sickness leaves.
In 2013, in the Croft Vets v Butcher case, it was found that Croft Vets refused a psychiatrist’s recommendation to have Butcher undergo six counselling sessions, which the company must pay £750 per session for. The psychiatrist was initially hired by Croft Vets to assess Butcher. The consultant hinted that Butcher might not fully recover and may be considered unfit for work for several months even after counselling. Croft Vets were not amenable to these possibilities and neither did the company consult Butcher.
It was believed that Croft Vets was concerned about the company’s liability and cared less for their employee’s disability. They did not consider taking any action to address Butcher’s illness.
After seeing that Croft Vets refused to make reasonable adjustments for her, Butcher resigned and filed a discrimination case. However, Croft defended itself saying that it was impractical for it to pay for Butcher’s treatment, considering the uncertainty of Butcher actually getting treated. Furthermore, Croft reasoned that Butcher could have gone to the NHS and availed free treatment. The EAT did not support these statements and, instead, questioned whether or not the NHS does provide such free treatment and when this type of treatment is available.
Croft further justified that paying for Butcher’s psychiatrist means that they would be covering the employee’s medical treatment, and not making a reasonable adjustment. However, the EAT again disagreed and said that the psychiatrist’s recommendation was a form of support (falling under “mentoring”) and was meant to ease the effect of Butcher’s disability on her job.
In the end, disability discrimination and constructive dismissal, which were also the ET’s decision, were upheld by the EAT. However, the EAT explained that it is not forcing employers to fund employees’ medical treatments but that they should, at least, give financial assistance when it comes to disabled employees’ medical needs in order to allow them to continue to work.
What types of other adjustments should be made?
There are other forms of reasonable adjustments that employers can make for their employees. These include:
- delegating some tasks that an employee with a disability cannot do to another employee or allowing employees to exchange work load
- giving an employee with a disability access to an equipment that will make work easier for him or her
- assigning the disabled employee to a position that does not require facing the public
- allowing the employee to go on breaks regularly to lessen the impact of the disability
- allowing the employee to continue working, even if this means temporarily assigning him to another department
The Environment Agency v Donnelly
Donnelly worked for an environment agency. She suffered severe knee, back and hip problems. As stipulated in her contract, she was allowed to go to work any time before 10am, but she usually arrived at around 9:30am. She has trouble looking for a parking space because the main car park was usually full by that time. Another car park was available but it was 10 minutes away on foot.
In The Environment Agency v Donnelly case, Donnelly claimed that her employer could have made reasonable adjustments by giving her an allotted parking space, making it more convenient for her to walk from her car to the office building. Walking from the overflow car park to the building would be difficult during bad weather especially because there were dangerous surfaces. The environment agency posed the argument that Donnelly could simply come to work at 9 am. The employer also suggested offering her a lift to and from the overflow parking area. Another suggestion to park in the disabled space, and then moving her car if a disabled driver with a badge were to park, was raised.
After seeking the advice of an expert on ergonomics, the report showed a recommendation to give Donnelly a designated parking space in the main parking area as it was hard and unsafe for her to walk on uneven or slippery surfaces.
The ET believed that the environment agency failed to make reasonable adjustments, which the EAT agreed with. Given Donnelly’s disability, it was difficult for her to walk to and from the other car park. Donnelly had a justifiable reason not to go to work earlier because it was supposed to be the employer’s duty to make reasonable adjustments and not her.
South Staffordshire & Shropshire Healthcare NHS Foundation v Billingsley
In 2016, in the South Staffordshire and Shropshire Healthcare NHS Foundation v Billingsley, the EAT said that it is important to consider whether or not the adjustment proposed (to address a disability) before an employer decides to push through with the adjustment. The employee, for his or her part, must only establish that the adjustment would work, no matter how slim the chance. He or she is not required to prove that the adjustment would completely alleviate the disability.
Is reducing hours a reasonable adjustment?
Secretary of State for Work & Pensions vs Higgins
In 2013, in the Secretary of State for Work & Pensions (JobCentre Plus) v Higgins, the EAT allowed employers to set time limits for employees returning to work after a long leave of absence due to sickness.
After being absent for more than one year, it was time for Higgins to go back to work. As approved by his physician, his employer reduced the hours he worked. The EAT said that the employer could set a limit of three months, within which they would continue to offer reduced hours for the employee. However, the EAT added that, if three months have already passed and the employee still needs the adjusted work schedule, the employer may decide whether to continue offering adjusted hours or not.
Carreras v United First Partners Research
In the Carreras v United First Partners Research in May 2016, as a PCP or a provision, criterion or practice, the EAT required employers to make reasonable adjustments if an employee with a disability is required to work late hours (i.e., evenings).
The employee must establish that he or she was disadvantaged by a PCP, or anything within the office premises that poses challenges or if the employer does not provide auxiliary support, when filing a case for failure to make reasonable adjustments.
Mr. Carreras had serious injuries from a bike accident he was in when he was working as an analyst in a brokerage and research firm.
Prior to the accident, Mr. Carreras worked long hours. However, after the bike accident, he started feeling dizzy and fatigued. His head ached often, he had trouble concentrating, and started to lose focus. All these made it difficult for him to work late hours.
When he came to work again, Mr. Carreras started working eight hours. After a while, he requested additional hours so he had to work late. His employer assumed that he was capable of working longer hours again.
Soon after, Mr. Carreras talked to his manager and told him that he could no longer work late. His manager argued and told him that if he did not like his work schedule, he was free to resign. Mr. Carreras did resign and filed a constructive dismissal and disability discrimination case.
The EAT supported the constructive dismissal case because of how the manager behaved. However, the disability discrimination claim was dismissed because the EAT believed that Mr. Carreras was not “required” to work late. Later, the EAT and the Court of Appeal said that there was an “expectation or assumption” that employees worked long hours.
Businesses are advised to consult an Occupational Health expert before allowing employees to work “long hours”. They must also make sure that employees who have disabilities are happy with their work schedule.
The Home Office v Kuranchie
In 2017, in the Home Office v Kuranchie case, Ms. Kuranchie, who has dyslexia, requested her employer to reduce her working hours. The employer granted this request, but, as the ET later found out, assigned to her the same amount of workload as her coworkers. Because of her dyslexia, Ms. Kuranchie spent more time finishing her work. Given Ms. Kuranchie’s disability, it would have been more helpful to her if, instead of the hours, the volume of tasks she worked was reduced. This shows that, although an employee may propose adjustments, it is still the employer’s obligation to consult a medical expert in order to identify the most applicable adjustment for the employee’s disability.
During a redundancy situation
When assessing performance or determining the selection criteria for redundancy, any absence related to an employee’s disability must not be taken into account, else the employer will be committing disability discrimination. Instead, what employers can do is adjust the attendance levels based on the disability.
In the Dominique v Toll Global Forward Ltd case in September 1014, the EAT discovered that Toll Global Forward Ltd could have made reasonable adjustments on the redundancy selection criteria. The criteria used put Dominique at a disadvantage (although Dominique would have faced dismissal for redundancy even if the adjustment was made).
Where an employee is unfit for work
In January 2015, the EAT made a conclusion that, if an employee has a disability and a physician certifies the employee as being unfit for work (without specifying a return date for the employee), then the employer is not obliged to make reasonable adjustments. This is based on the Doran v Department for Work and Pensions case.
Managing Sickness Absence
When an employee with a disability is absent due to sickness, it is the employer’s responsibility to analyse how long that employee is expected to be absent, on average, in a year. This is according to the Employment Appeal Tribunal after looking at a case in 2013.
Employers must consider that employees with disability may have more absences compared to other employees. If an employer sanctions a disabled employee due to attendance issues (i.e., based on policy absences), then the employer may face charges for disability discrimination.
Griffiths v Secretary of State for Work and Pensions
In the Griffiths v Secretary of State for Work and Pensions case in 2014, Griffiths said that she had been disadvantaged by how the DWP attendance policy was applied. The EAT held that reasonable adjustments should have been made for Griffith to be able to return to work and do her job after a sickness absence due to her disability.
Meanwhile, the Court of Appeal said that the reasonable adjustment should have been made to the attendance policy, considering that an employee with a disability is likely to be absent (due to sickness) more often that other employees. This means that if the same attendance to all employees, then the ones with disabilities are at a disadvantage.
DL Insurance Services v O’Connor
In June 2018, The EAT supported Mrs. O’Connor’s claim that she suffered discrimination due to her disability when her company issued a written warning as a form of disciplinary action due to her absences. Mrs. O’Connor has been with the company since June 2005. Because of her disability, the company granted her request to have flexible work hours in 2009.
However, according to the company’s attendance policy, Mrs. O’Connor had already exceeded the threshold for sickness absences, so she was required to attend a disciplinary hearing and was given a written warning. Her sick pay was also stopped, leading her to file a disability discrimination case against her employer.
Both the original Tribunal and the EAT supported Mrs. O’Connor’s claim saying that the company did commit disability discrimination when it issued a written warning, which jeopardised Mrs. O’Connor’s sick pay, on top of putting her at risk of disciplinary sanction. The EAT further said that the company failed to consult an occupational therapist and seek medical advice before placing sanctions on Mrs. O’Connor. The company also did not consult Mrs. O’Connor’s manager to see if and how her absences affected her job. The EAT believed that issuing a warning did not, in any way, help solve the problem with her attendance as her absences were due to her disability.
Redeploying an Employee
Before assigning or redeploying a disabled employee to a different job, the employer must first consult with and get the consent of the said employee, as this involves a change in the employee’s contract or his employment terms and conditions.
If the employee is to be paid a lower salary, then it is up to the company to determine whether it is reasonable or not depending on the following factors:
- size of the organisation
- organisation resources
- previous pay of other employees
- tenure of the employee
- the employee’s skill level
- the employee’s value to the company
It is also at the employer’s discretion to freeze the employee’s current pay for a certain period of time.
G4S Cash Solutions UK Ltd v Mr. Powell
Both the Employment Tribunal and the Employment Appeal Tribunal said that keeping an employee’s salary rate after redeployment to another position is considered a reasonable adjustment. This is based on the G4S Cash Solutions UK Ltd v Mr. Powell case in 2016.
When Mr. Powell was transferred to a new position, his old employment terms and conditions were maintained. He thought this was going to be the case for good until one year later when he was informed that his rate was to be reduced. Mr. Powell did not agree with this decrease in his pay and he was later dismissed. After this, Mr. Powell filed a case for unjust dismissal.
The EAT agreed that the company should have made the reasonable adjustment of keeping Mr. Powell’s rate, since this would have cost the same if the company decided to consider making other adjustments.
Makuchova v Guoman Hotel Management (UK) Ltd
According to the EAT, an employer is not obligated to create an “ideal” position for an employee who is returning after being on leave. Such is the case in 2015 when Makuchova, a hotel supervisor, returned to work after being on sickness absence. Makuchova, upon her return, was fit to go back to her job as hotel supervisor. However, she refused going back to this job and, instead, started applying for other positions in the hotel. Since another position would require her to undergo training again, her employer offered reasonable adjustments if she returned as a hotel supervisor. Makuchova refused the offers and complained that her employer did not have any planned adjustments before she was dismissed. The EAT said that it is not required for employers to provide training to employees so they can transfer to other jobs. The hotel only needed to make adjustments based on what was reasonable and not what Makuchova believes is reasonable.
J Frost v Retail Design Solutions Consultancy Ltd
According to an Employment Tribunal, limiting an employee’s professional development after redeployment is considered disability discrimination.
In the J Frost v Retail Design Solutions Consultancy Ltd case in 2018, Ms. Frost was part of a branding team and functioned as senior designer. Her managers were aware that she had anxiety disorder and trusted her when she said that her job helped her manage attacks. However, in 2016, a new line manager, Froud, became part of their team. Ms. Frost did not have a pleasant relationship with Froud because he often triggered her anxiety. This led to the branding team to be put under new management and with Ms. Frost being assigned to the planning team, handling six employees under her.
Ms. Frost was not pleased with this transfer so she filed a formal grievance. A grievance investigation was conducted where Ms. Frost was informed that her career development relied on her ability to control her anxiety attacks. It was later found out by the Tribunal that, since the Company knew about her condition, transferring her to another position was partly due to her anxiety disorder.
During the investigation, Ms. Frost also proposed that certain adjustments be made to help her better cope with her anxiety. These included letting employees drive and attend meetings with her, hold discussions prior to having meetings for her to control her anxiety episodes. However, the company not only disregarded Ms. Frost’s suggestions, but it also did not make any other reasonable adjustment. These actions taken by the company clearly show that Ms. Frost’s redeployment was indirect discrimination. Ms. Frost also filed cases for direct discrimination, harassment, and victimisation but these were dismissed.
Dismissing a Disabled Employee
Before dismissing an employee, the employer must consider all alternatives, look at what serves the business’ best interest, and, most of all, decide objectively. If the disciplinary action taken against an employee is based on his or her disability, then it may be considered discrimination. Employers must understand that if a disability affects an employee’s ability to do day-to-day tasks, then it must be a disciplinary case.
To estimate the length of absence of an employee with a disability, employers must look for ways to understand the employee’s illness, its nature and severity, and its impact on the employee’s performance.
O’Brien v Bolton St. Catherine’s Academy
The O’Brien v Bolton St. Catherine’s Academy 2017 involved Ms. O’Brien, a teacher, who experienced being attacked by a pupil on March 2011. She was seriously stressed and had to take a leave from work. Her absence lasted more than 12 months, returning only on January 2013. Not long after, she was dismissed. The UK Court is looking at a possible discrimination case.
At Ms. O’Brien’s appeal, she submitted medical certificates and a “fit for work” recommendation. However, her employer thought that the medical proofs she showed were inconsistent and the prognosis did not present any guarantee. Ms. O’Brien then filed a disability discrimination case.
After looking at Ms. O’Brien’s evidences, the Court of Appeal thought it was negligence on the part of the employer to not consider her medical certificates showing she was fit to work. Ms. O’Brien had already been absent for 15 months, so the school could have waited a few months more in order to make their own assessment. Also, the school failed to point out any effect of Ms. O’Brien’s absence on their institution. All these led the Court of Appeal to believe that discrimination on one’s disability was committed.
Discrimination and Misconduct
In January 2018, the Rochford v WNS Global Services case was heard in the Court of Appeal. Mr. Rochford felt discriminated when, after being absent due to a bad back caused by a major spinal injury, he was given a reduced work load to test whether or not he has fully recovered and is ready to get back to work. Although WNS retained his position and salary, the company did not give him a clear timeframe as to how long this “trial” period would last before he could do his normal duties. So, Mr. Rochford refused to do his job and, instead, filed a grievance case. This was later dismissed. He was given disciplinary warnings for his refusal to work and was dismissed in April 2013. WNS cited failure to comply with management request as the reason for his dismissal.
The Court of Appeal questioned whether it was just to dismiss an employee who refused to tolerate being discriminated against.
The original ET believed Mr. Rochford did suffer disability discrimination because the company, WNS, had no medical basis for reducing Mr. Rochford’s role and not discussing a timescale as to when he will be able to return fully to his original task. When questioned about why he did not do his job, Mr. Rochford said that this would only mean accepting the way he was treated. However, the ET and the Court of Appeal both thought that Mr. Rochford’s circumstance did not justify his actions (i.e., refusal to do his job even if he was able to, following the disciplinary procedure with clear warnings) and were considered gross misconduct. Because of this, Mr. Rochford lost his claim for unfair dismissal.
Although it seemed that the company only wanted to extend help to its employee, since there was no medical record indicating that Mr. Rochford needed any form of adjustment at work (i.e., working in a reduced role), the Court of Appeal did not support WNS’s action.
Terms and Conditions of Employment
Not paying bonus to an employee with a disability is against the law. This is proven in the Land Registry v Houghton case of 2015. As do most companies, Houghton’s employer has an incentive program for performance and attendance. However, employees with formal warnings due to sickness or absence were automatically disqualified from the scheme. Houghton was regularly absent because of sickness caused by disability and had therefore received warnings. The Court believes that excluding employees from getting bonuses because of absences caused by a disability puts employees at a great disadvantage.
Discrimination by association is committed if an employee experiences unfair treatment simply because he or she associates with another employee who has a disability. One company was found guilty of this in a case in 2013.
Price v Action-Tec Services
Mrs. Price worked as a tele-sales executive at Action-Tec Services. She and her husband both suffered from illnesses – she had degenerative disc disease while her husband had leukaemia. She took her husband to a hospital to have him undergo tests in March 2011. His prognosis did not look good.
Mrs. Price was able to report to work the next day but was then absent again the following week as advised by her physician. When she returned to work, the Recruitment and Training manager talked to her and said that, had he known about her husband’s condition, he would not have hired her. Mrs. Price was dismissed on that same day. The Tribunal cited this as direct disability discrimination because Mrs. Price was dismissed simply because the employer assumed that she would be a liability to the company and would not be able to perform well because of her husband’s disability.
Bainbridge v Atlas Ward Structures Ltd
A similar incident happened in the Bainbridge v Atlas case. An employee’s contract was not renewed because the company cited that he often filed for time off on short notice because he had to care for his wife who had a disability. The employer also said that this has inconvenienced the company.
Although, according to the Equality Act, an employer is not obligated to make reasonable adjustments for employees who care for someone with a disability, it is still considered unlawful discrimination to not allow an employee to take a leave in order to accompany a disabled dependent (associative). This was confirmed by the Court of Appeal in June 2014.
Truman v Bibby Distribution
The Truman v Bibby Distribution Ltd in 2015 demonstrated another case of associative disability discrimination when an employee with satisfactory performance and good reviews was dismissed. Mr. Truman had a daughter who had cystic fibrosis. His wife used to care for the child primarily, but as she started her own business, Mr. Truman now needed to take more time off work so he could attend to his daughter’s needs. Before he could complete one year’s service that would have entitled him to have 18 weeks of unpaid parental leave, he was dismissed. It was said that Mr. Truman’s line manager asked a Regional Manager to “gather as much dirt on the claimant as he could