Devil in the detail

The complexities of the disability legislation make it easy
to slip up in practice. Paul D McMahon looks at the areas in which personnel
practitioners really need to be on their toes

Day-to-day activities

Helen, who is employed as an IT support assistant in an insurance company,
has been injured in a car accident. She suffered head injuries and a broken
pelvis and as a result has permanent restriction of movement in her upper body
and learning difficulties. On her return to work she explains to Mike, her line
manager, that she can no longer take part in her favourite hobby of potholing,
and has great difficulty in carrying out household chores involving bending and
lifting. Mike, however, noticed she did not appear to have any restriction of
movement when he saw her moving computer equipment last week, but wonders if
Helen may be disabled in terms of employment legislation.

PDM comments A person is disabled in terms of the Disability
Discrimination Act if they suffer from, "a physical or mental impairment
which has a substantial and long-term adverse affect on their ability to carry
out normal day to day activities."

Assume that Helen’s condition is "substantial and long-term" and
the question becomes whether it is having an effect upon her ability to carry
out normal day-to-day activities, a question which has been the subject of
recent case law.

In the case of Ekpe v The Commissioner of Police of the Metropolis, (2001
IRLR 605) the EAT highlighted that in dealing with the question the focus
should be on what a person cannot do because of their disability, rather than
what they can do. In that particular case, which concerned a female employee,
the original tribunal decided that putting in hair rollers and applying make-up
were not normal day-to-day activities. That decision was overturned by the EAT
which said the question that should be addressed is whether the activity can be
considered abnormal or unusual. They observed that the Guidance to the
Disability Discrimination Act states that an activity is not normal if it is
only carried out by a particular person or group of people, and stresses that
just because the activity is mostly done by one gender, does not mean it is not
normal. In Helen’s case, it would appear that doing household chores would be
viewed as a normal day-to-day activity; but not potholing.

The significance of how well Helen is able to carry out normal day-to-day
activities at work, such as lifting computer equipment, was addressed by the
Court of Session in the case of Law Hospital NHS Trust v Rush (2001 IRLR 611)
when it was stated, again with reference to the guidance to the DDA, that work
duties were not day-to-day activities. But where work duties include some
element of day-to-day activities, such as lifting objects, this information
could be relevant to the credibility of an employee who is claiming they cannot
carry out a particular activity. Therefore, Mike’s observation that Helen was
able to move computer equipment would not be relevant to the definition of
disability, but could be relevant to whether she is telling the truth or exaggerating
about her lack of ability to carry out household chores.

Substantial disadvantage

The following month, disciplinary proceedings are instigated against Helen
after allegations that she made racist remarks to a fellow employee who is from
an ethnic minority. Under the company’s disciplinary procedure, Helen is
suspended and a disciplinary hearing is held. A solicitor’s letter arrives
saying Helen feels discriminated against because, in view of her learning
difficulties, she did not understand the letter she received explaining the
disciplinary procedure to her, she was intimidated and felt unable to express
herself fully because of the formal nature of the hearing, and because she was
not permitted to bring along a friend in place of a work colleague. Mike,
however, recalls that a long-standing and trusted colleague of Helen’s
explained the contents of the letter and accompanied her to the hearing at
which it was observed that Helen had been very articulate in her own defence.

PDM comments Section 6 of the Disability Discrimination Act provides
that, where an employer’s working arrangements or premises place a disabled
person at a substantial disadvantage, then a duty to make reasonable
adjustments arises to avoid the disadvantageous effect. Failure to make such
reasonable adjustments is discriminatory, unless it can be justified by a
reason which is both material to the circumstances of the case and is
substantial. Therefore, the duty to make reasonable adjustments only arises
where an employee is placed at a substantial disadvantage.

A similar situation arose in the case of Cave v Goodwin & Another (2001
EWCA Civ391). In that case the applicant was a care assistant in a residential
care home and had epilepsy and learning difficulties. Allegations of sexual
misconduct were made against the applicant and the employer initiated
disciplinary proceedings, similar to those used by Helen’s employer. The
applicant received a letter informing him he was suspended and that there was
to be a disciplinary hearing. The applicant did not receive any oral
explanation of the charge and the process from his employer, which also refused
his request to be accompanied by a friend (not a work colleague) at the
disciplinary hearing.

The question the tribunal first considered was whether the applicant had
been put at a substantial disadvantage by this alleged discrimination. Although
he had received notice of the suspension and the disciplinary hearing by
letter, it was found he had been able to read most of the letter, and the
entire contents of the letter were explained to him by his colleagues. He had
had an understanding of the disciplinary hearing and was able to express
himself at the Hearing. The tribunal therefore found the applicant suffered no
substantial disadvantage as a result of the alleged discrimination, and
therefore the duty to make reasonable adjustments did not arise.

In Helen’s case, the employer may have done better to modify the
disciplinary procedure by explaining the suspension and the arrangements for
the disciplinary hearing orally, as well as in letter form and allowing her to
be accompanied by a friend at the hearing, rather than a fellow employee (the
guidance to the DDA recommends that a person with learning difficulties be
accompanied by a friend at such a hearing).

They might also have considered making the hearing itself less formal with
regular breaks for Helen to consult with the friend who accompanied her.

The employer could argue, however, that the duty to make reasonable
adjustments did not arise, as she did not suffer a substantial disadvantage.

They could point out the disciplinary letter was fully explained to Helen by
a trusted colleague, it was this colleague who accompanied her to the
disciplinary hearing, and the procedure did not seem to prevent Helen from
expressing her point of view.

Reasonable Adjustments

Subsequently, Helen’s condition deteriorates and she goes on long-term
sickness absence. Following the company’s long-term sickness absence procedure,
a report is obtained from the company’s occupational health department which
indicates that it is unlikely that Helen will ever be able to return to work
and she is dismissed on the grounds of ill health. Helen claims disability
discrimination, claiming reasonable adjustments have not been given serious
consideration by the company.

PDM comments As stated above, section 6 of the DDA requires that
reasonable adjustments be made when a disabled person suffers a substantial
disadvantage, unless the failure to do so can be justified.

The importance of proper consideration of adjustments which can be made, to
the question of whether or not it was reasonable to make them, and whether or
not failure to do so can be justified, was emphasised in the case of Fu v
London Borough of Camden (2001 IRLR 186). In that case, the applicant had
suffered from two accidents at work. She proposed a number of adjustments be
made to her working conditions, including a voice-activated computer, a
hands-free phone, an adapted chair and easy access shelving.

The employer did obtain a report from occupational health and the OH
assessor’s position was that they could not indicate when the applicant was
going to be able to return to work. The applicant was therefore given a choice
of ill health retirement or dismissal.

This case went to the EAT, which observed that as dismissal itself is not an
act of discrimination under the act, the only matter they were required to
consider was whether reasonable adjustments should have been made.

The EAT considered that the employer had discriminated against the applicant
because they had failed to consider the extent to which the proposed
adjustments could have allowed her to return to work.

When an employer is faced with the prospect of considering adjustments, the
possible adjustments should be discussed with both the employee and the medical
advisor.

The focus should be whether the adjustments will make a real difference –
will they lead to the disabled person suffering no substantial disadvantage by
reason of their disability, compared to a non-disabled employee? Investigations
should then be conducted as to the effect of these possible adjustments on both
the employee and the workplace, with a view to establishing whether they can
reasonably be made.

Where appropriate, the employer ought also to consider implementing
adjustments for a trial period as an alternative to dismissal.

Paul D McMahon is a solicitor with Harper McLeod

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