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.
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 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.
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.
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 Thring Townsend Solicitors www.thringtownsend.co.uk