The Equality Act was introduced to provide clarity on the rights of individuals to ensure equal opportunities. However, there are still areas that remain uncertain and, therefore, still open to interpretation, according to employment law specialist Anne Pritam.
Call me a cynical lawyer, but I reckon I am in pretty good company in predicting a significant growth in claims for discrimination, if the Government proceeds with its proposal to introduce a two-year qualifying period to present a claim for unfair dismissal (compared with our current one-year waiting period). An employee who is unhappy with the loss of his or her job within the first two years of joining a company will inevitably be searching around for reasons, and it is only human nature to expect: (a) that many line managers will have done nothing to present employees' shortcomings to them before firing them; and (b) that many employees will alight upon discrimination as being the true cause of their unhappiness as a result.
To be fair to the Labour administration (and we employment lawyers are rarely fair to any government), it must be said that the landscape of discrimination law was given the "Capability Brown" treatment and tidied up considerably. The Equality Act 2010 (enacted in large part in October 2010) is a codification of our previous discrimination laws that were scattered across a number of, in some cases quite ageing, statutes. As ever, with any law encompassing excellent and high-minded principles, it can only be a matter of time before the Act is pummelled, twisted and squeezed into various interpretations to serve the interests of lawyers' clients, on both sides of the employment fence.
In no area are we likely to see this more than in the disability discrimination arena.
Reversing the Malcolm test
The new s.15 of the Equality Act, which I examined in-depth in a previous article for Occupational Health magazine, clears up points of confusion in the wake of the Malcolm v Lewisham Council decision, which held that a comparator in a disability-related claim is a non-disabled comparator with the same characteristics as a disabled person, for example, a period of sickness absence.
However, the Equality Act also leaves a number of major questions unanswered, in this and other areas. Many important threads have been left hanging and it has to be said, whether you cheer on the employer or the employee team, some golden opportunities have been missed.
As occupational health practitioners will undoubtedly know (and be able to recite by heart), a disability was and remains defined as "a physical or mental impairment which has a substantial long-term adverse effect on the individual's ability to carry out day-to-day activities". You would think that a definition so wordy would cover every eventuality. As we have seen since 1995, this is not the case.
A disability remains defined as 'a physical or mental impairment which has a substantial long-term adverse effect on the individual's ability to carry out day-to-day activities'"
The old sch.1 of the Disability Discrimination Act 1995, which supplemented s.1 of the Act and explains various points that should be taken into account in assessing whether or not a disability existed, has now been swept away. In its place, the Office for Disability Issues (interestingly, not the Commission for Equality and Human Rights (CEHR) - of which more later) has generated an updated 51-page guidance note on Matters to be taken into account in determining questions relating to the definitions of disability. Those occupational health professionals who have not reviewed this particularly fine piece of bedtime reading should certainly do so soon.
In assessing business risk for an organisation, as well as considering appropriate strategies for a patient, first base has to be questioning whether or not the individual has a disability. It is crucial to bear in mind that, in law, only an employment tribunal or a higher court is entitled to reach a conclusion on that point.
However, occupational health professionals who comment on the various constituent parts of the definition of a disability will be assisting their clients in assessing how to present those arguments in tribunal and, more positively, encouraging good workplace practices in the management of disability.
It is certainly true to say that the illustrations are rather more helpful than the previous guidance. However, the guidance still perhaps disproportionately focuses on physical disability, whereas the experience in my firm and many others is that mental illness is increasingly the touchstone of disability discrimination claims and complaints in the workplace. That said, the definition of normal day-to-day activities under the old schedule gave very little assistance to medics grappling with this question in the past. It is a shame that there has been no progress in devoting specific guidance to the mental health arena now that there is a substantial body of case law on the topic.
For the first time, the Equality Act codifies under English law an entitlement for an employer to take "positive action". Positive action allows an employer to take action to correct disadvantage or encourage participation where a particular group is disadvantaged or under-represented. The Act allows for a protected characteristic, such as disability, to substitute a "tie breaker" in a recruitment or promotion situation where two candidates are of equal merit.
Positive action allows an employer to take action to correct disadvantage or encourage participation where a particular group is disadvantaged or under-represented."
Again, if disability or any other characteristic is to be used as the tie breaker, an employer must be able to show that disabled people generally would be disadvantaged or have lower participation in a particular activity, so the appointment is part of redressing the balance. It all sounds great in theory, but I would suggest that employers should proceed with caution.
For senior level appointments, where candidates' career histories are extremely varied and skills can be quite disparate, it would be far from obvious when individuals could legitimately be considered to be "equally qualified". Getting this judgment wrong could result in a discrimination claim for which compensation is uncapped for an unsuccessful candidate.
Perception of disability
In the seminal case of Coleman v Attridge Law, the European Court of Justice concluded that Mrs Coleman had been discriminated against by her employer, a law firm, because of the disability of her son. The facts of the Coleman case make for distressing reading, and it is an extreme case that, as ever, has created a rather difficult precedent. However, associative discrimination is now with us to stay. While the problems of managing the risk of associative disability discrimination have been covered in some depth in the press, less has been written about perceptive discrimination.
Employers that do not have the benefit of medical advice, or choose to forego that benefit in dealing with an employee with health issues, may unwittingly stumble into decisions based on an assumption of disability that could prove to be wrong.
It has to be the case that perceptive disability discrimination would mean that an employer might be liable for discriminating against an individual whom it believes to have a certain disability, when in fact the person concerned has a different disability (or indeed none). Counter-intuitively, if an employer perceives a person to be disabled when in fact they are not, a discrimination claim, in theory, can still be brought.
One of the biggest headaches for occupational health is the extent to which the information that is held on a confidential medical basis is deemed to be within the employer's own knowledge.
As explained in a previous article in Occupational Health magazine, pre-employment health questionnaires are now banned. However, job offers may still be made conditional on successful questionnaires, and questionnaires are permissible once an offer has been made.
If an employer perceives a person to be disabled when in fact they are not, a discrimination claim, in theory, can still be brought."
It is worth noting that questions to facilitate the recruitment process, such as special access or requirements during assessment arrangements are still permissible, but a broad question about sickness absence prior to an employment offer (which was until recently very common) is outlawed. Notably, monitoring for the purposes of measuring diversity remains acceptable.
As outlined in the earlier article, big question marks remain about what is intrinsic and necessary to a role, thereby enabling an employer to ask about conditions. All of this begs the wider issue of how to deal with confidentiality and information flow. This must be the biggest and most golden lost opportunity.
There remains deep confusion over confidentiality. This arises from the conflicting provisions of the "Statutory Code of Practice: Employment, Part 1, Chapter 5", from the CEHR, which blithely concludes that where an occupational health adviser is an employee of the employer company, the knowledge of the adviser is generally to be taken as imputed to the employer but where he/she is retained by an employer, perhaps through an agency or through their own consultancy, the knowledge is not imputed to the employer.
That conclusion is entirely counter to the decision of the Court of Appeal in Hartman v South Essex Mental Health NHS Trust, a case decided in 2005 - long predating the CEHR's guidance. The message of that case is clear: what OH knows is not what the employer knows unless OH has specifically disclosed this under a separate duty to the employer.
It would have been helpful to OH practitioners if, in the context of reviewing disability in the workplace and the workings of discrimination law and its protection of the disabled, the CEHR's guidance could have been brought in line with the actual position of the law.
Like the GP's sick note, another chance for the OH role to be clarified and formally endorsed has been missed.
In legal terms, the Equality Act remains young. How it is functioning on the ground will not be clear until some unfortunate employers' mishaps, misunderstandings or plain malice come to be picked over in the tribunal.
Anne Pritam is a partner in the employment team at international law firm Stephenson Harwood. She advises employers on the full range of issues arising in employment situations, including recruitment, promotion, absence management, disciplinaries/grievances, dismissals, discrimination, bonus arrangements and flexible working.
XpertHR provides a line manager briefing that looks at the law and best practice on disability discrimination.