The Disability Discrimination Act 1995 (DDA) imposes two main obligations on employers – not to treat disabled employees less favourably than non-disabled staff, unless such treatment is justified and, separately, to make reasonable adjustments to a disabled person’s work arrangements so as not to place them at a substantial disadvantage compared to those who are not disabled. These obligations apply in respect of job applicants as well as existing employees.
The main issue employers have to deal with in the context of the DDA is what to do to avoid liability when faced with a worker who might come under the definition of disabled within the terms of the Act, who is causing difficulties by prolonged or continual absences. The matter is brought into sharp focus when an employer eventually comes to consider a dismissal.
In these circumstances, the employer has to both avoid the dismissal being unfair under the terms of the Employment Rights Act 1996, and avoid it being discriminatory under the DDA. The main points of concern in terms of avoiding an unfair dismissal claim were set out in an earlier column (Personnel Today, 2 November 1999).
As to disability discrimination, the hurdle for employers in justifying potentially less favourable treatment is relatively low. In the leading case on the issue, Kenrick, the EAT found that the wording of the Act is very lenient for employers. The relevant section, 5(3), states that the treatment “is justified if the reason for it is both material to the circumstances of a particular case and substantial”. In other words, the employer appears to need only show that it has a cogent business reason for the dismissal which is “of substance” in order to justify the less favourable treatment of the disabled worker – that is, the dismissal.
In the Kenrick case, an earlier decision of the EAT (Baynton), which had suggested that a balancing exercise between the interests of the disabled employee and those of the employer should be carried out, was doubted. The Kenrick case, however, left open the possibility that the employer must be able to show, before being able to justify less favourable treatment, that it had already complied with its duty to make reasonable adjustments first.
Fulfilling the justification test
In many practical circumstances, however, an employer has done just that. It has tried many ways to reorganise the work to make it easier for the employer to deal with the frequent absences, and only as a final straw does it need consider the possibility of dismissal. In such cases, a cogent business reason for saying “enough is enough” might be sufficient to fulfil the justification test.
Bear in mind, however, that it was this aspect of the DDA that was criticised when the Act was brought into force by the previous Conservative government, on the ground that this provision gave employees too much leeway. It may be that this or a future government might take the view that the justification test should be changed to that currently used for indirect sex discrimination cases, and as recently adopted in the Part-Timers regulations – namely that the justification defence is only made out if the employer was pursuing a legitimate objective which required this decision, and that the decision was necessary and appropriate in the circumstances.