The Devil’s in the detail

Conscientious employers can avoid claims of unfair dismissal as a result of
long-term sickness yet still find themselves falling foul of the Disability
Discrimination Act, as Michael Nield explains

Most well informed employers today have fine-tuned procedures which swing
into action when an employee suffers from recurrent or long-term sickness.
Provided such procedures are followed and a fair investigation carried out, the
astute HR professional will avoid the risk of unfair dismissal claims.

Yet even the most caring employers have been known to overlook the provisions
of the Disability Discrimination Act 1995 (DDA). Although we all know that
disability does not simply refer to white sticks or wheelchairs, it is not
always appreciated that persistent or long-term absence can be a symptom of a
disability as defined by the Act. The consequences of overlooking the DDA can
be costly – contrast the potential penalties in the table below right.

So even though the compensatory award for unfair dismissal claims was raised
from £12,000 to £50,000 in October 1999, compensation for DDA claims is
unlimited and there will also be an award for injury to feelings. Nor, in DDA
cases, does the employee require a minimum period of employment before being
eligible to bring a claim.

Disability – a closer look

Disability is defined in the Act as "a physical or mental impairment
which has a substantial and long-term adverse effect on a person’s ability to
carry out normal day-to-day activities".

A physical impairment may be obvious but not necessarily so – consider
arthritis, asthma or even migraine, for example. A mental impairment is a
clinically recognised mental illness and clearly includes clinical depression.

The adverse effect must be long-term and substantial. Long-term effects are
those that have lasted, or are likely to last, at least 12 months or are
recurring and likely to recur beyond the 12-month period. The term
"substantial" means that the adverse effect must be more than minor
or trivial.

The adverse effect must be considered without the help of corrective medication
or equipment. The effect on the person’s normal day-to-day activities should be
considered as if they were not taking their prescribed medication or were not
fitted with a prosthesis or other corrective equipment The only exception is
the use of spectacles.

The adverse effect must be on normal day-to-day activities. Note that the
test is not whether a person can do the normal activities associated with his
or her job. It is wider than that: you must look at everyday living.

The discrimination

The Act says that an employer discriminates against a disabled person if,
for a reason relating to the disability, he treats the disabled person less
favourably than others to whom that reason does not apply, and cannot show that
the treatment in question is justified. Discrimination also occurs if the
employer fails to make reasonable adjustments to the premises or the employee’s
method of working and this failure is not justified.

The employer need make only reasonable adjustments. This is a question of
fact and what is reasonable for one employer or employee will not necessarily
be the same in another case. The factors the employer must consider are how
much the alteration will improve the situation for the disabled employee, how
easy it is to make the change and the cost, both financially and in terms of
disruption. Other factors are the employer’s resources and any financial help,
for example government or charitable grants that might be available.

The defence of justification and the requirement to make reasonable
adjustments are of course interrelated. An employer may be justified in
dismissing or refusing to promote an employee who clearly cannot do the job
because of his disability.

He would not be so justified if an adjustment could reasonably be made to
the premises or working methods which would enable the employee to do the job.
Because the definitions of disability and discrimination are so tortuous, it is
perhaps not surprising that initially there were some unusual decisions by the
tribunals which had to be corrected on appeal.

In the case of Goodwin v The Patent Office, date, case no, a paranoid
schizophrenic began to hear voices and behaved bizarrely. Because he was able
to manage living by himself, an employment tribunal came to the conclusion that
there was no "substantial adverse effect upon his ability to carry out
day-to-day activities". Since this is part of the definition of disability
the employee was held not to be disabled.

The Employment Appeal Tribunal disagreed with this decision. The condition
affected the employee’s concentration and memory which are factors to be taken
into account.

The EAT also said that the word "substantial" meant no more than
not merely trivial, in effect lowering the hurdle which the employee had to
clear to claim the Act’s protection. The EAT went on to comment that the
tribunal should consider the facts as a whole as well as the constituent parts
of the definition; it would be "surprising" if someone suffering from
paranoid schizophrenia was not disabled.

Less favourable treatment

This issue has also caused difficulties. In the case of Clarke v Novacold,
Clarke sustained an injury at work in August. He was still off work the
following January when he was dismissed. His condition was likely to last more
than 12 months and his employer accepted that he was a disabled person within
the meaning of the Act. The employer argued, however, that it had not
discriminated against Clarke because it would also have dismissed a
non-disabled person who was likely to be absent for the same length of time.

The Court of Appeal decided that it was not appropriate to compare Clarke
with a non-disabled comparator in this way. It was enough that "but
for" his disability he would still have been working and would not have
been dismissed. He therefore suffered less favourable treatment – that is,
dismissal – for a reason relating to his disability.

Reasonable adjustments and justification

There have been a number of decisions in tribunals and on appeal concerning
these issues.

In the case of Kenny v Hampshire Constabulary, a computer analyst with
cerebral palsy was refused a job because he needed a personal carer to attend
to his personal needs, in particular to help him use the toilet. The employer
refused to provide a personal carer and Kenny made a claim under the Act.

An employer may be required to provide an extra person to help with work,
for example supervision, a reader or an interpreter. An employer may also be obliged
to alter the physical characteristics of a building to ensure access, for
example to the toilet. But the tribunal held that the employer was not obliged
to provide a personal carer.

Continuing employment

In Hipkiss v Joseph Ash, the employee was a process worker in hot-dip
galvanising. He suffered an epileptic fit and was suspended from work on
medical grounds.

The employer obtained a report from an occupational health physician who
said it would be unduly dangerous for Hipkiss to work in the vicinity of open
baths and tanks and he should not drive a forklift truck. He could, however,
work with guarded machinery. In due course Hipkiss was dismissed.

The tribunal held that although the employer had acted correctly by
obtaining an OH physician’s report, it had then misinterpreted that report to
mean that Hipkiss should not work in the whole environment. Further, the
employer had failed to consider making reasonable adjustments such as matching
the employee’s skills to duties which he could safely carry out. For these
reasons Hipkiss’ dismissal amounted to discrimination under the Act.

The moral in this case is that there is no point in the employer obtaining a
medical report if it then pays only lip service to it or uses it selectively.

In Angel v New Possibilities NHS Trust, a nurse was off work with a bad back
from June 1997 until her dismissal in July 1998. It was accepted that she had a
disability within the meaning of the Act.

The trust argued that it had made reasonable adjustments by retraining her
with a view to re-deployment on clerical duties. But when such posts became
vacant she was subject to open competition and was unsuccessful in her
applications. In due course the nurse was dismissed.

The tribunal in this case took the view that although the trust had given
their nurse training to apply for a clerical post, it should not have required
her to compete for the vacancy with other applicants. Accordingly the trust had
failed to make a reasonable adjustment.

Redundancy

Surely no employer would be so foolish as to select someone for redundancy
because of their disability? The answer may be that no employer is likely to do
this consciously but selection criteria must be considered carefully and
allowance made for any unfair impact on a disabled person. For example, an
employee who has to be absent one day a month for kidney dialysis would be at a
disadvantage if no allowance for this were made against their attendance
record.

In Kershaw-Hudd v Wavin Building Products, an assembly operator developed a
work-related upper limb disorder and was continuously absent from June 1998
with this condition. She was in pain and unable to use her hand properly.

During her absence from work a redundancy situation arose at Wavin and
Kershaw-Hudd was selected along with others for redundancy. There was full
consultation and the redundancy criteria were made known. These were attendance
record, disciplinary record, skills; potential for advancement and service.

Kershaw-Hudd contended that she was treated less favourably in the
redundancy selection process because of her absence record. In this particular
case the tribunal found as fact that even if the disability-related element of
her absence was disregarded, there would still have been a low score in the employee’s
attendance criteria and indeed the other criteria. The tribunal found that the
other selection criteria were objective and fairly applied.

In this case the employee was unable to make out her case that she had been
discriminated against by the manner in which redundancy selection criteria were
applied to her. But this case does illustrate to all HR departments the
importance of not taking selection criteria at their face value where one of
the pool of employees is disabled.

Long-term effect – 12 months

The impairment must have lasted 12 months, or be likely to last 12 months or
be of a recurring nature where a recurrence is likely beyond the 12-month
period. So how is this being interpreted?

In Greenwood v British Airways, a cargo assistant had suffered from clinical
depression, a recognised mental impairment. After a course of treatment a BA
physician produced a report to say that the employee was now fit and well.

Subsequently Greenwood applied for promotion but was unsuccessful. He was
told he was unreliable due to previous sickness. He subsequently raised a
grievance and went off sick with depression again.

It was argued on the employer’s behalf that at the time of the alleged
discrimination – the unsuccessful promotion interview – Greenwood was well, his
treatment had been successful and, looked at at that time, his condition was
not likely to recur. Accordingly, it was argued that he did not satisfy the
12-month requirement.

The EAT had no difficulty finding that Greenwood’s subsequent medical
condition should also be taken into account. The very nature of a depressive
illness is that stress is likely to make it recur even though at the date of
the discriminatory act Greenwood appeared to be cured.

It is clear that the law on disability discrimination is still a moving
target. Watch these pages for further developments.

Michael Nield is head of the employment law team at Townsends Solicitors

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