The Disability Discrimination Act 1995 (DDA) bans the discrimination, harassment or victimisation of disabled people. It covers every employment scenario, as well as the provision of goods and services and what standards to expect of others.
One of the main effects of the DDA has been to enable people to observe strict parameters when dealing with disability, and to clarify proper expectations. The Act defines disability as: a physical or mental impairment that has a substantial and long-term adverse effect on the ability of the individual to carry out normal day-to-day activities. At the time it was introduced the Act was revolutionary, bringing disabled people into the workplace through the key concept of reasonable adjustments.
The Act requires employers to make reasonable adjustments for effects on normal day-to-day activities in at least one of several specific capabilities, including hearing, manual dexterity, mobility, speech and vision. In the workplace, memory or the ability to concentrate are significant as they affect concentration, which may affect behaviour. A person’s ability to remember social interactions is affected through disturbances of neurotransmission or changes in biochemistry. This is how people with bipolar disorder come under the protection of the DDA.
Bipolar disorder, sometimes described as manic depression, is a fluctuating psychiatric condition which sometimes affects behaviour and concentration. It is not a single disorder characterised by episodes of abnormally elevated and/or depressed mood-swings, but a spectrum of disorders characterised by changes of mood occurring with varying degrees of rapidity. Even if mood changes are interspersed with periods of normality, the bipolar person may not be aware of the changes affecting them, and may find it difficult to cope with relationships with colleagues, which can put both parties at risk.
Sometimes the condition can lead to remarkable achievements and creativity. Medication and medical supervision can balance the highs and lows of mood-swings, but bipolar disorder is still considered a disability under the DDA. Not only is it likely to be episodic or recurring, in some cases which are resistant to medication or where the patient is non-compliant, it may also be progressive or deteriorating.
In Health and Quality of Life Outcomes 2008, 6: 76 (www.hqlo.com/content/6/1/76), 38 adults suffering from HIV “conceptualised [their disability] as multi-dimensional and episodic, characterised by unpredictable periods of wellness and illness”. Although HIV and bipolar disorder have nothing intrinsically in common, this extract could equally well describe the fluctuating nature of bipolar disorder.
What’s in a name?
The DDA protects all disabilities except those acquired by choice, such as fire-setting and drug addiction. Employers must not stigmatise those with a disability and must consider reasonable adjustments to allow those with the condition to work. The terms manic depression or manic depressive psychosis (still used on medical certificates at times) clarify the range of changes in mood and that the condition is a disorder rather than a disease, a maladjustment of function.
The problem in the workplace is how employers can deal with the worst extremes of the spectrum. While the DDA requires people to gain access to work to cope with disability, it does not require them to be in work when they are experiencing severe symptoms which can lead to attempted suicide or hallucinations, extreme paranoia and delusions: in such circumstances it is mandatory for employers to send an employee home (safely) to protect other staff. However, such severe symptoms make other employees fearful, which makes it difficult to rehabilitate the bipolar person when they are fit to return to work. Staff must be trained to report problems to managers rather than taking action themselves, as this could be seen as harassment.
Occupational health (OH) is likely to get involved if an employee with the condition needs to be removed from the premises. This is not necessarily brought about by unacceptable or frightening behaviour, but may only be because the employee with the condition develops a more manic obsession with trivia which distracts or irritates other staff and affects performance. OH will also be involved in return-to-work procedures. There is no rule of thumb on the length of any absence, nor on the number of absences. As well as ensuring the employee concerned is fit to return to work, managers must prepare co-workers to deal with issues that might arise without disclosing the nature of the diagnosis, which is subject to confidentiality and data protection rules. The capacity to hold down a job depends on the level of instability and whether there are any avoidable triggers.
It may be necessary, if appropriate adjustments cannot be made, to consider terminating the employee’s employment on the grounds of ill health. There is no check-list of reasonable adjustments for bipolar sufferers. Each individual is different and each time there is an episode, the circumstances will be different. Known risk factors may be avoided, but there may be new ones, or the metabolism may change without warning so that today’s adjustment may be tomorrow’s provocation. When all reasonable adjustments have failed to protect the bipolar person and their co-workers, the employer can consider dismissal on the grounds of capability. The employer must follow proper procedures to avoid falling foul of the DDA and to ensure fairness under the Employment Rights Act 1996.
The Disability Rights Commission guidance clarifies that if the employer does not know about the disability, they cannot make the adjustments necessary to protect their rights.
In Department for Work and Pensions (DWP) v Hall (2005), the Employment Appeal Tribunal upheld the Employment Tribunal’s decision that the DWP had constructive knowledge of Hall’s disability and had failed to make reasonable adjustments. Hall’s job application omitted any mention of her psychiatric condition, for which she was not taking prescribed medication. The DWP was not alerted by Hall’s refusal to answer questions about her medical history, or to provide access to her doctor for a report.
The DWP was held to have constructive knowledge of her disability because, after Hall started work, she was involved in several confrontations with other members of staff with verbal and physical interactions. Before she was subject to disciplinary proceedings, she applied for a tax credit under a disability entitlement. She was dismissed on the grounds of conduct. The EAT rejected the DWP’s argument that no reasonable adjustments would have been possible because Hall was not taking her medication. It was clear that the DWP had not put its mind to reasonable adjustments at all.
If an employee’s conduct is unacceptable and in breach of the employer’s disciplinary code, the employer should investigate to identify any underlying medical condition and indicate whether the DDA may have to be considered. An employer can consider dismissal if a bipolar person’s obsessive attention to detail distracts fellow employees, as this can be seen as some other substantial reason for dismissal.
Dismissal is the last resort in any employment situation. Employers that resort to dismissal are at high risk of provoking a claim of disability discrimination unless they can show particular care was taken to make work arrangements fit in with the employee’s medical condition. OH practitioners are advised to look in detail at the 2009 Acas Code of Practice on Disciplinary and Grievance Procedures, supplemented by the Acas Guide, which explains how HR professionals should conduct disciplinary hearings.
As OH professionals have medical knowledge, they should take part in procedures where employees’ behaviour could be attributed to a condition covered by the DDA. Employers must be clear when it is appropriate to pursue a case using the capability procedure, and make a clear distinction between disciplinary and behavioural or performance issues.
One of the problems is when employees have a poor sickness record. In Royal Liverpool Trust v Dunsby (2005), the employer’s appeal succeeded against a judgment that there had been disability discrimination and unfair dismissal of an employee with a poor sickness absence record which had been attributed by its OH department to personal problems.
The DDA does not prevent dismissal because absence is wholly or partly on grounds of ill health due to disability. Any dismissal requires fair procedures and must be justified, but the DDA does not require a sickness absence procedure to disregard disability-related absences. The essential point is that the employer’s treatment of the worker concerned is justified, whether for bipolar disorder or any condition.
Linda Goldman, BDS, LLB, is a barrister at Henderson Chambers, Temple, EC4Y 9DB.
Joan Lewis, MCIPD, MA (Law & Employment Relations) is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect. Any enquiry about this article may be made to Joan Lewis at [email protected] Telephone 020 8943 0393