Disability has always struck me as the odd one out among the nine protected characteristics covered by the Equality Act 2010 – with two additional causes of action (discrimination arising from disability and failure to comply with the duty to make reasonable adjustments), disability discrimination is perhaps more equal than the other protected characteristics, where prohibited conduct is limited to direct discrimination, indirect discrimination, harassment and victimisation.
The wide definition of disability also means that this is a very active area of anti-discrimination law. Increasing numbers of individuals are able to establish that they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, meanwhile the uncertainty created by such a wordy description (for example, the test for “long-term” effect is whether the impairment has lasted or is likely to last for 12 months or more) offers encouragement to those on the periphery seeking to argue that they are disabled. Incidentally, notwithstanding that employees or workers suffering from such impairments may already qualify as disabled under the Equality Act 2010, the Conservative manifesto for the 2017 general election proposes to include disability protection for those with fluctuating or intermittent mental health conditions such as depression, anxiety or bipolar.
Protection from disability discrimination extends beyond employees to workers and also encompassed direct discrimination by association (less favourable treatment because of the disability of another person) or perception (less favourable treatment because of an individual is perceived to be disabled, irrespective of whether they are). It is therefore unsurprising that disability-related actions, which account for roughly 14% of all discrimination claims and just over 4% of all employment tribunal claims, are set to rise.The diaspora is no better illustrated than by the fact that a putative disability discrimination claim lay at the heart of the recent high profile employment status claim Pimlico Plumbers Limited & another v Smith (2017) EWCA Civ 51 (Mr Smith needed to establish that he was a engaged as a worker rather than self-employed in order to be able to pursue his complaint that he suffered discrimination because of his disability).
2016 brought several judgments which developed disability discrimination law, arguably reigning in its application to the benefit of employers and service providers. Griffiths v Secretary of State for Work and Pensions (2016) IRLR 216 dispelled the myth that employers are unequivocally obliged to change their sickness absence warning triggers for disabled employees. In Griffiths the Employment Appeal Tribunal found that rescinding a warning for a disability-related absence and pushing back the trigger for further action was not a reasonable adjustment; uniquely, it was not argued that the procedure itself was indirectly discriminatory, although had it been one suspects that the DWP may have succeeded with arguing that any particular disadvantage was objectively justifiable for similar reasons that the contended adjustments were held to be beyond reasonable. First Group v Paulley (2017) UKSC 4 also considered reasonable adjustments but in the context of a wheelchair user who was denied a specifically designated space on a bus because a mother with child in a pushchair refused to vacate the seat. The case divided the Supreme Court not on liability (it was agreed that the bus company had failed to make a reasonable adjustment) but on the level of the award with the majority finding that it was unreasonable for the law to sanction lawful but inconsiderate conduct.
The judgment handed down earlier this week in Charlesworth v Dransfields Engineering Services Limited UKEAT/0197/16/JOJ appears to continue the trend. Mr Charlesworth was a branch manager with DES Ltd and from October 2014 was absent for two months following an operation for renal cancer, before returning to fulltime work. During his absence DES Ltd identified the possibility of restructuring the business in such a way that Mr Charlesworth’s post would cease to exist; he was subsequently warned of the risk of redundancy, consulted and, in the absence of suitable alternative employment, dismissed with notice.
Discrimination arising from disability occurs where a person treats a disabled person unfavourably because of something arising in consequence of their disability, and the treatment cannot be objectively justified as a proportionate means of achieving a legitimate aim – something must arise in consequence of the disability and the unfavourable treatment must be because of that something. Authorities include dismissing an employee because of their need to take disability-related leave, moving an employee from a permanent to a short-term contract because they wished to return to work follow sickness absence on reduced hours, and dismissing an employee for a criminal conviction caused by them suffering from “an abnormality of the mind”. Mr Charlesworth was dismissed for a reason arising from his disability then, surely?
No said the Employment Appeal Tribunal. Section 15 of the Equality Act 2010 requires the unfavourable treatment, in this case dismissal, to be because of the something arising from the employee or worker’s disability, no less than an effective cause (although it need not be the sole or main cause) will do. Although there was a link between Mr Charlesworth sick leave and his dismissal, the absence was not an effective cause of his dismissal. There was a distinction between the context within which the event which caused his dismissal occurred and the cause itself – the absence gave DES Ltd the opportunity to discover that it could exist without Mr Charlesworth, however, it was the realisation that his post was redundant which caused his dismissal.
Discrimination is a complex area and one where employers can unknowingly fall foul of the law in seemingly innocuous circumstances. Whilst a working knowledge of the Equality Act 2010 is helpful, taking legal advice and implementing an equal opportunities policy is essential. At Jacksons Law Firm, our Employment Team boasts a combined 50 years practicing experience advising on all employment law matters. For further details, please contact Paul Clark or another member of our Employment Team.
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