Adjusting to disability

It is the duty of the employer to make reasonable adjustments to the
workplace in order that a disabled person can be successfully employed. Failure
to do so can result in a claim for discrimination. The problem lies in
determining what is a reasonable adjustment, and it is here that the OH
professional can make a contribution, By Joan Lewis and Linda Goldman

Employment tribunals are increasingly occupied with disability
discrimination cases. The question of whether a person is disabled is one of
fact, which, if not conceded by the employer, must be determined by the
tribunal hearing the case.

As employers become more aware of the various facets of disability, the
current trend in litigation is for employees to claim there were no reasonable
adjustments that could have enabled them to carry out their work.

The purpose of legislation is to ensure that the disadvantages engendered by
physical and mental conditions affecting the ability of persons to perform
normal day-to-day activities are ameliorated by a range of adjustments. The key
word covering the lengths to which employers need to go is ‘reasonable’.

Equality

Effective adjustments will go some way to ensuring equality of opportunity
for the disabled element of the workforce.

A couple of thousand years ago, Aristotle thought that equality consisted of
the same treatment of similar persons, whereas these days it is thought to be
either the same treatment of dissimilar persons or that there is no such thing
as dissimilarity.

By the 18th century, it was recognised in Great Britain that the community
at large had an equal right to the protection of government.

The American Declaration of Independence reflects the responsibility of
government to ensure equality of opportunity. "We hold these truths to be
self-evident, that all men are created equal, that they are endowed by their
creator with certain inalienable rights, that among these are life, liberty and
the pursuit of happiness." Thomas Jefferson, 4 July 1776.

Legalities

The legal concept of equality of opportunity in the workplace for disabled
people has been a long time coming, particularly for the mentally disabled and those
suffering from chronic illness or deteriorating conditions.

The Disability Discrimination Act 1995, defines ‘disability’ and ‘disabled
person’ in terms that are now familiar to the occupational health profession.

It states: "A person has a disability if he has a physical or mental
impairment that has a substantial and long-term effect on his ability to carry
out normal day-to-day activities." A disabled person, with nice legal
logic, means a person who has a disability.

In broad terms, the DDA prohibits discrimination against job applicants and
employees. Discrimination takes place if, without justification, a disabled
person is treated less favourably than someone who is not disabled. In
particular, it is discriminatory to fail to comply with the duty imposed by
Section 6 of the Act – the duty to make reasonable adjustments.

Failure to comply with a Section 6 duty can be justified if, and only if,
the reason for the failure is both material to the circumstances of the
particular case, and substantial. Thus, there is a close relationship between
less favourable treatment and failure to make reasonable adjustments.

Recognising the disability

Schedule 1 of the DDA relates to mental and physical impairments affecting normal
day-to-day activities. Any mental impairment must be a clinically
well-recognised illness. Whether the condition is mental or physical, the
impairment affecting various aspects of normal life including mobility,
dexterity and concentration must be substantial.

Employers should bear in mind that painful physical conditions can affect
concentration. The fact that a person suffers from a clinically well-recognised
illness is not sufficient for that condition to amount to a disability. Many
medical certificates use words such as ‘depression’ or ‘anxiety’, which are
sufficient to amount to a condition that could be a disability, but the global
effect on the ability to carry out normal day-to-day activities must be
considered as well as the duration of the impairment.

When in doubt about advising on a case, the Code of Practice to the Act is
essential reading. It is worthwhile noting that it takes a broad approach,
giving some consideration to the effect adjustments may have on co-workers.

The purpose of the legislation is to encourage employers to create a
workplace environment that is suitable for the disabled employee, not to
encourage litigation. Thus, it is useful to obtain expert advice in the making
of reasonable adjustments rather than to obtain expert evidence for a later
court case.

Reasonable adjustments

Once an employee has shown that he or she is disabled within the meaning of
the Act, it will be necessary for the employer to make reasonable adjustments
to accommodate that employee’s needs. A person who is dismissed for mere
absence from work pursuant to a disability may not have had the benefit of a
reasonable adjustment that could have resulted in the ability to attend for or
otherwise carry out some form of work.

This principle also applies to the ability to attend a disciplinary hearing.
It was recently noted, in Andreou v Lord Chancellor’s Department, 2002, IRLR
728, CA – a race discrimination case – that the mere fact a person is certified
not well enough to attend work "does not automatically entail that that
person is not fit enough to attend a tribunal hearing".

The employee did not provide any of the specific information requested by
the tribunal to support her contention that she was not fit to attend the
hearing of her race discrimination case. The tribunal was therefore unable to
draw the inference that the nature of her illness was serious enough to warrant
an adjournment of the hearing.

This is an approach that could be adopted where an employer is intent upon
carrying out disciplinary proceedings in cases of potential disability
discrimination.

The breadth of a reasonable adjustment is considerable. Recently, a local
authority was held to have discriminated against a disabled healthcare worker
on long-term sick leave when it did not consider a completely different sort of
work, including flexible clerical duties unrelated to the work she was employed
to do.

Some conditions for which reasonable adjustments can be made with the
assistance of OH advice include dyslexia, blindness (particularly partial
sight) and psychiatric disorders exacerbated by workplace stress.

The employer needs to know the extent of the condition and whether it is
compounded by any other related condition, such as impaired concentration
because of pain, so as to take a reasonable approach to making adjustments.

Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. She is head
of training and education for ACT Associates & Virtual Personnel. Joan
Lewis is the senior consultant and director of ACT Associates and Virtual
Personnel, employment law and advisory service consultancies and licensed by
the General Council of the Bar in employment matters under BarDirect.

Case roundup

McNicol v Balfour Beatty Rail Maintenance Ltd, 2002, IRLR 711, CA

This is one of a group of cases where the persons claiming
physical disability were unable to show any organic cause for their symptoms,
which were diagnosed as being the effect of psychological overlay. This was not
deemed to be a disability within the meaning of the Act.

There was no evidence before the employment tribunal, whose
decision was upheld, that there was any organic or physical pathology
underlying the applicant’s symptoms. No evidence was adduced by the applicant
that his back pain "was the result of, or consisted of, a clinically
well-recognised mental illness … ‘impairment’ may result from an illness or
it may consist of an illness".

The applicant is required to show the nature of his or her
impairment. Both parties must adduce relevant medical evidence from which a
reasonable inference should (or should not) be drawn that the applicant
"can fairly be described as having a physical or mental impairment".
The tribunal was entitled to reach the decision that the applicant was not
disabled within the meaning of the Act on the evidence before it.

Mowat-Brown v University of
Surrey, 2002, IRLR 235, EAT

The applicant suffered from multiple sclerosis. This can be a
progressive condition. In the guidance on matters to be taken into account in
determining questions relating to the definition of disability, a person with a
progressive condition will be treated as having a disability "from the
moment any impairment resulting from that condition first has some effect on
his or her ability to carry out normal day-to-day activities".

The effect need not be continuous and need not be substantial.
The medical evidence in this case was that the applicant was not disabled by
his condition, having suffered no symptoms since the initial diagnosis three
years previously. He was not likely to suffer any substantial effect in the
future and was not within the remit of the Act.

The tribunal was entitled to find that he was not disabled and
that it was not "more likely than not that in the future the condition
would have a substantial effect on his ability to carry out normal day-to-day
activities".

Vicary v British
Telecommunications plc, 1999, IRLR 680, EAT

The tribunal noted that the applicant suffered an upper limb
disorder that rendered her unable to perform normal day-to-day activities
including cooking and carrying shopping, but relied on the evidence of the
respondent’s occupational health physician that these effects were not
‘substantial’ within the meaning of the Act.

The doctor cited her experience in having attended DDA seminars
to support the quality of her evidence. That was irrelevant. It is not for a
witness to determine whether the effects are ‘substantial’, although the
witness can explain the criteria on which his or her opinion is based.

Morgan v Staffordshire University,
2002, IRLR 190

The Court of Appeal set out a useful list of criteria in
disability cases, reflecting the fact that the occasional use of terms
contained within the International Classification of Diseases (ICD), such as
anxiety, stress and depression, do not amount to proof of a mental impairment
within the meaning of the Act. These terms may be descriptive rather than
diagnostic. The onus is on the claimant to prove, on the balance of
probabilities, that there is an impairment.

The parties should identify the impairment or why the alleged
impairment is denied.

A medical report should cover diagnosis of a clinically
well-recognised illness or the result of such an illness.

The medical report should cover "…the presence or
absence of symptoms identified in the ICD diagnostic guidelines".

A full consultant psychiatrist’s report is not needed in every
case. A GP report may be sufficient, provided that it is couched in terms to
satisfy the requirements of the Act.

If impairment is to be disputed, expert evidence may be needed
(see De Keyser v Wilson, 2001, IRLR 324, EAT).

If failure to make adjustments is in issue, medical evidence
should cover the full chronology of the illness, including whether the illness could
have manifested itself during the course of employment.

"The dangers of the tribunal forming a view on ‘mental
impairment’ from the way the claimant gives evidence on the day cannot be
overstated. Aside from the risk of undetected or suspected play-acting by the
claimant at the date of the hearing itself … the presence of the impairment
will need to be proved or disproved. Tribunal members will need to remind
themselves that few mental illnesses are such that their symptoms are obvious
all the time and that they have no training or … expertise, in the detection
of real or simulated psychiatric disorders".

Andreou v Lord Chancellor’s
Department, 2002, IRLR 728, CA Per Arden LJ

"Stress and anxiety are generic terms covering a range of
symptoms differing widely in their severity … [the party suffering from a
stress-related condition] should expect to provide details of the symptoms, the
causes, severity and so on, or to explain why those details cannot be supplied
to the tribunal".

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