The number of employment tribunal claims for discrimination arising from disability appears to be rising. John Charlton looks at what is behind the trend, and asks how future developments could affect the way employers manage disabled people at work.
Discrimination arising from disability was introduced in the Equality Act 2010 to prevent disabled people being treated “unfavourably because of something arising in consequence” of their disability. Anecdotally, it appears that the number of discrimination arising from disability claims is rising, so are employees adopting it as a relatively easy route to success in employment tribunals?
Joanna Marshall, employment solicitor at Charles Russell Speechlys thinks this is the case. “One of the reasons [for the rise] is because case law appears to be making it increasingly easy for claimants to be successful in bringing this type of claim,” Marshall says.
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“In the recent case of Risby v Waltham Forest the Employment Appeal Tribunal (EAT) held that the casual link between the unfavourable treatment and the disability does not have to be very strong in order to make a discrimination arising from disability claim. Therefore, even where the link between the individual’s conduct and their disability is seemingly tenuous a tribunal might find there is sufficient to constitute discrimination. This has significantly broadened the scope of discrimination arising from disability.”
Naeema Choudry, employment partner at Eversheds, agrees, and suggests that employment tribunal claimants may be making claims for discrimination arising from disability because it is more difficult to win claims for an employer’s failure to make reasonable adjustments.
“In practice, it is not difficult for a claimant to establish they are disabled,” says Choudry. “In many cases a set of facts could give rise to simultaneous claims for discrimination arising from disability and a failure to make reasonable adjustments, and many claimants do take a belt-and-braces approach and bring both types of claim.”
She adds that “from a legal perspective” a discrimination arising from disability claim is “usually much more straightforward” than “trying to shoehorn in a reasonable adjustments claim”.
Martin Pratt, employment partner at Gordon Dadds points out: “As part of the Government’s welfare reforms there are more and more people with disabilities in the workplace. This is obviously a positive, but in many cases employment practices have not kept up – resulting in more claims.”
Are discrimination arising from disability claims on the rise?
Ministry of Justice (MoJ) figures for tribunal cases do not break disability discrimination claims down by type of case. If anything they show such cases overall have fallen. In 2015/16, the MoJ logged 3,183 cases of disability discrimination coming before employment tribunals, compared with 7,260 in 2012/13.
To put this in context, there were 66,096 multiple, and 16,935 single, claims going before employment tribunals in 2015/16. In 2012/13 there were 136,837 multiple and 54,704 single cases considered by employment tribunals.
What the future holds for disability in employment
The Cameron Government pledged in 2015 to cut the employment gap between disabled and non-disabled people.
According to the Work and Pensions Select Committee the employment rate among disabled people in 2015 was 46.7% compared with 80.3% for the non-disabled. Halving this gap would mean 1.2 million more disabled people in the workplace. According to the Disabled Living Foundation there are more than 6.9 million disabled people of working age, or 19% of the working population.
A Green Paper on getting more disabled people into jobs is due by the end of this year.
Disability UK says it wants the upcoming Green Paper to contain “stronger incentives and levers used with employers to encourage them to employ more disabled people”. It wants: employers to be compelled to publish figures on how many disabled people they employ; employers bidding for Government contracts to show they have sound track records in employing disabled people; and more support to help them to get a job.
The Resolution Foundation wants the paper to recommend expanding the Access to Work programme, and wants a “right-to-return-to-work” period of one year for disabled people who take sick leave due to their disability, and a rebate of statutory sick pay for employers paying sick pay to disabled staff.
Of course, the introduction of tribunal fees has considerably cut the number of tribunal claims, including disability discrimination ones. Individual tribunal decisions may provide pointers as to how disability discrimination case law is developing.
Key cases on discrimination arising from disability
For Hogan Lovells partner Ed Bowyer and senior support lawyer Helena Davies, there are three stand-out cases: G4S Cash Solutions (UK) Ltd v Powell; Risby v London Borough of Waltham Forest; and Griffiths v Secretary of State for Work and Pensions.
In G4S Cash Solutions (UK) Ltd v Powell the EAT found it would have been a reasonable adjustment for the employer to give pay protection to an employee who was transferred to a less-well paid job because of disability. In Risby, the EAT confirmed that for the purposes of discrimination arising from disability, it is enough if disability is one effective cause of the unfavourable treatment among others.
And, in Griffiths, the duty to make reasonable adjustments applied to an absence management policy that included trigger points for warnings, although on the evidence, say Bowyer and Davies, “it was not reasonable for the employer to make the adjustments in question”.
Bowyer and Davies feel the Powell case is important as the EAT took the view “that there was no reason pay protection should not be a reasonable adjustment, in the same way as allowing additional (paid) absence for illness or rehabilitation, for example”.
As for Risby, “there were two contributory factors which led to the claimant’s dismissal – physical disability and a short temper. The EAT confirmed that disability only has to be an ‘effective cause’ of unfavourable treatment for a claim of discrimination ‘arising from’ a disability to succeed. There is no requirement for ‘direct linkage’.”
Pratt points to two cases: Pnaiser v NHS England and Lamb v The Business Academy Bexley. In the Pnaiser case, says Pratt: “It was held that the provision of a negative reference due to sickness absence relating to a disability and the consequent withdrawal of a job offer amounted to disability discrimination by the employer.”
In Lamb, “it was held that the employer’s proper investigation of an employee’s grievances, and provision of an outcome that enabled the employee to return to a safe and discrimination-free environment at work amounted to a reasonable adjustment for disability discrimination purposes. This shows the duty to make reasonable adjustment is very wide and employers should not take too narrow a view. Pnaiser is significant in that it reminds employers that scope for disability discrimination extends beyond the termination of employment.”
A further case, Nally v Freshfields Care, involved a care worker who brought a claim for discrimination arising from disability under the Equality Act 2010. Nally was dismissed after using abusive language to a resident suffering from dementia. He claimed he was suffering from post-traumatic stress disorder (PTSD), for which he was receiving counselling. The employment tribunal held that the employer should have realised that Nally suffered from PTSD, and ought to have sought further medical advice and acted accordingly. Nally was awarded £8,514.
Finally, in Land Registry v Houghton and others, a 2015 case, the EAT upheld the tribunal’s earlier view that five disabled claimants suffered discrimination arising from disability when they were excluded from a bonus scheme because of their sickness absence records. They had received formal warnings for their absences which debarred them from bonuses.
The EAT upheld the tribunal’s view that the formal warnings resulted from disability-related absences.
Widening definition of disability
Meanwhile, employers may be concerned that definitions of what constitutes a disability are likely to widen. The 2010 Equality Act defines a disabled person as a person with a disability if he/she has a physical or mental impairment which has a substantial and long-term adverse effect on his/her ability to carry out normal day-to-day activities.
This clearly allows scope for interpretation. What are the likely trends?
Marshall says: “With increasing awareness of mental health issues in the workplace, I anticipate there will be more disability claims related to mental health conditions over the next few years.”
As for obesity, Marshall points out that in Walker v Sita Information Networking Computing, the EAT found that “obesity is not an impairment of itself but the effects of obesity may result in a claimant being disabled. This has arguably opened the door to more disability discrimination claims [from the obese], but claimants will have to provide medical evidence of physical or mental impairment. This may be why no major increase in such claims has been reported so far.”
Bowyer and Davies see a trend developing in the relationship between sickness, conduct and disability. For example: “At what point will an employer be deemed to have constructive knowledge of an employee’s disability? What is the current state of play on absence management procedures in terms of making reasonable adjustments? What points arise when an employee claims that misconduct was related to or caused by their disability?”
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In Choudry’s view: “We are increasingly seeing conditions which are not themselves a disability, but can give rise to symptoms which are. Obesity is a prime example.Post-Brexit we may see changes in the way courts define disability. This is because in EU law the concept of disability looks at the impairment’s effect on ‘normal day-to-day activities’ which may or may not include work-based activities depending on how specialist they are.”
What can employers do to reduce disability discrimination risks?
Pratt says pre-employment health questionnaires may be used under the Equality Act to establish if an employee has a disability. “A properly constructed questionnaire will help employers establish at the outset whether there are any mental or physical disabilities that may require action,” he says. “If a candidate does not disclose, when asked, that he or she has a ‘hidden’ disability then it is difficult for them to say that the employer should have a constructive knowledge of that disability if an employment tribunal claim is made.”
