Disability in employment, recent cases
What is a ‘disability’?
A disability is a long term physical or mental impairment which has a substantial impact on a person’s ability to do normal day to day things.
This is (more or less) the definition contained within the Equality Act 2010, which enshrines discrimination law. Over the years case law has helped us to understand what is likely to constitute a disability, and what isn’t. ‘Long term’ we know is a year or more. ‘Normal day to day things’ varies from person to person and depends on what they were able to do (including occupationally) before acquiring the disability.
Thus, a broken leg is not disability – while it certainly impacts the ability to do normal day to day things, it won’t (normally) last for a year or more. Mental health issues are trickier though – anxiety, which many people suffer and particularly at times of stress, is unlikely to be a ‘disability’ as in most cases anxiety won’t prevent the sufferer from doing normal day to day things (though in extreme cases it might.)
Why does it matter?
But why does it matter so much in an employment context? Quite simply because if an employee has a disability, one of the 9 protected characteristics defined in the Equality Act, then an employer must consider making reasonable adjustments in order to accommodate that person in the workplace. This right to reasonable adjustments applies not just to employees with 2 years’ service (the point at which employees become entitled to protection against unfair dismissal), but to anyone at any time. A disabled job applicant could bring a claim against an employer who failed to consider a readily available adjustment to accommodate him. A disabled employee with just a few weeks’ service, could bring a claim against an employer who dismissed them for underperformance related to their disability, in circumstances where the employer failed to implement reasonable adjustments.
Reasonable adjustments for disabled employees
What are reasonable adjustments? Again, shades of grey for employers. What we would reasonably expect of Coca-Cola, we may not expect of a small independent motor garage,
Two recent cases – undiagnosed conditions and what constitutes ‘long term’
Two recent cases have added additional insight into the topic of ‘disability’ and it’s worth taking a moment to consider them.
In Bennett v MiTAC Europe Limited the appeal tribunal considered an interesting case of an employee who alleged he had been dismissed because of a colleague’s disability, albeit the disability was undiagnosed at the point the decision appeared to have been made. Whilst this is a complex case it did produce a couple of useful conclusions, firstly that a diagnosis is not necessary for the employee to be deemed ‘disabled’ – on the facts of the case, there was enough information available to the employer to know that the employee probably did have a condition that could have met the definition of a ‘disability’, and so in this case the employer should have undertaken investigations into the nature of the employee’s illness before deciding to dismiss – ignorance is not (always) a defence.
Secondly the Bennett case reminds us that discrimination can occur in cases when someone other than the employee has a disability – this is called discrimination by association, and is triggered when an employee is treated less favourably on the grounds of a disability belonging to a person who is associated with them – normally a child or someone else in their care, but in Bennett’s case it happened to be his boss. Here the Company decided to cease the activities undertaken by a department which consisted of Mr Bennett and his boss, the latter of whom was diagnosed with cancer, which was suspected rather than diagnosed at the time the decision to dismiss was taken. If it could be proved that his boss had a disability, and if the tribunal concluded that his (and his subordinate’s) dismissal was related to that disability then Mr Bennett’s case could succeed on the basis of his boss’ disability.
In the different case of Sullivan v Bury Street Capital Ltd an employee contended that their dismissal was discriminatory and attempted to rely on two bouts of paranoid delusions as amounting to a disability. A series of related health incidents could amount to ‘long term’ for the purposes of the Equality Act, even if the incidents were weeks or months apart with no adverse effects in between them. In this case however the claim failed, the tribunal concluding that there was not enough evidence to suggest a further recurrence of the same nature in the future.
Deciding whether an employee is ‘disabled’
myHRdept has assisted employers to deal with numerous cases involving potential disabilities as defined under the Equality Act, and often employers will want to know definitively whether their employee is disabled. The answer, as these cases illustrate, is sometimes not straightforward, and where doubt exists it is often safer to act on the assumption that the employee is disabled.
Returning to the definition we started with in this article, an employee is likely to be disabled for the purposes of the act if:
- the condition they have will last (or has lasted and continues for) a year or more; and
- has a substantial adverse effect on their ability to carry out normal day to day tasks.
If these two factors are present then the employee will probably be protected by discrimination legislation and any decision to dismiss must be proved to be unrelated to their disability.
HR Support from myHRdept
If you need help managing under-performance issues or with understanding how to approach ‘reasonable adjustments’, myHRdept’s HR support services are ideal. Included within all of our HR outsourced support packages is a bank of support hours to help manage staff issues, and we also retain the services of an occupational health company to help investigate health-related issues.
If you’re thinking of outsourcing your HR or employment law needs, why not contact myHRdept? Call us on 01628 820515, email us at firstname.lastname@example.org to discuss your requirements, or contact us via our website and we’ll call you back.