14 October 2015

Discrimination arising from disability: increased protection for employees

This article was written by Tamsin Rickard

This month the power of employment tribunals to make recommendations in cases concerning discrimination in the workplace under the Equality Act 2010 was repealed, removing a weapon from the arsenal of discrimination claimants.

But the courts now seem to be handing discrimination claimants more ammunition. Two recent cases have expanded protection against discrimination, with potentially far-reaching results. 

Discrimination arising from disability

The first of these is the case of Hall v Chief Constable of West Yorkshire Police in which the Employment Appeal Tribunal (EAT) considered the test in claims of discrimination “because of something arising in consequence of the claimant's disability”. This type of claim was introduced in 2010 to avoid the necessity for disabled claimants to show a close causal link between their disability and related detrimental treatment: an acknowledgement that it may be the effects or consequences of a disability, rather than the medical condition itself, which has the most severe impact on a disabled individual and their treatment at work. For example, a disabled employee may have more sickness absence than a non-disabled employee, and be disciplined as a result of the absence record rather than because of the underlying disability. This would be captured by discrimination "arising from a disability" (although the employer may be able to establish a defence of justification in such claims depending on the circumstances).

However, as this case shows, the concept of discrimination arising from disability is worryingly vague for employers.

Ms Hall was a long-serving employee who suffered from a number of medical conditions. Following a review of the department where she worked, Ms Hall went off sick, but her employer put her under surveillance following a report that she had been seen working in a pub. Ms Hall then underwent heart surgery, shortly after which her employer wrote to her stating she was required to return to work within the next ten days, with no further absences for a period of three months. She was also put at risk of redundancy. A series of meetings took place which she was unable to attend, following which she was dismissed for gross misconduct. She claimed unfair dismissal and discrimination arising from disability.

The EAT found that this was discrimination arising from a disability – even though the reason for the dismissal had been the employer’s genuine (although wrong) belief that Ms Hall was not too sick to work.  West Yorkshire police argued that her disability was merely the background circumstances, but the EAT found that nevertheless it was a “significant influence on the unfavourable treatment…a cause which is not the main or the sole cause, but is nonetheless an effective cause of the unfavourable treatment”. This was sufficient to found the claim.

What does this mean for employers?

This introduces a worryingly broad and vague test for such claims. The process followed by West Yorkshire Police was not ideal, which may have added fuel to the fire.  However, all employers should be concerned that such a loose connection between the effects of a disability and alleged unfavourable treatment of the disabled employee is sufficient to found such a claim. The effects of the disability need not be the sole or even the main cause of the less favourable treatment - but the employer could still be liable for discrimination. Based on this ruling, wherever disability has played a part in an employer's actions - however minor or circumstantial - an employer will be at risk. 

What can employers do to mitigate risk in this tricky area? 

  • In dealing with disabled staff, medical advice may be required at an early stage to ensure that the particular needs of a disabled employee are taken into account, including making any reasonable adjustments.  
  • Where the employer decides to subject the employee to treatment they may see as detrimental - such as disciplinary action - the employer must clearly document their reasons for doing so to refute allegations of discrimination. 
  • If the disability or its effects plays any role, however minor, in that decision or process the employer must consider whether their decision is justified by some legitimate purpose - and must also consider whether there are any potentially discriminatory effects of that decision and how to avoid or minimise them. This thought process must be documented.

This trend towards greater employee protection continues in the recent case on associative victimisation.

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