The aim of the Disability Discrimination Act 1995 is to ensure that people with a disability are able to undertake and remain in employment without hindrance and with a little help, if not from their friends then from their employer.
It is well known to the occupational health profession that the key concept of the Act is that the achievements of a disabled employee can be made possible or facilitated by reasonable adjustments. These will enable access to the job through the advertising and recruitment process and through physical access to the premises or workstation.
When at work, adjustments by way of provision of equipment and other assistance will be provided when it is reasonable, and reasonably practicable, to do so. This includes the provision of any equipment aids or special access measures that may be needed for someone with a physical disability, such as ensuring that walkways are wide enough for the passage of a wheelchair, or that grab-rails are provided to cope with balance or other mobility impairment.
But there are many invisible disabilities, such as psychological and functional disorders, metabolic conditions, sensory impairment – any condition that affects a person’s ability to carry out basic daily activities. For example, dyslexia or depression are conditions that are not necessarily obvious. The purpose of the Act is to ensure that people who are fit to work can do so, regardless of the label of disability.
A person is disabled if they have a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. Given that “substantial” is taken to refer to a condition that is neither minor nor trivial, it might be thought that dealing with disability would be a straightforward affair. If a condition affects normal, basic daily activities such as cooking, carrying, shopping and walking, it is likely that some adjustments will be needed in the workplace. For those adjustments to be made, the employer must have at least a glimmer of an idea about what is needed.
If it ain’t broke…
The trouble with the law is that it does not seem to be able to cope with the old saying, ‘If it ain’t broke, don’t fix it’. The employer is under a statutory and common law duty to ensure that the workplace and system of work is not ‘broke’, but sometimes it does need fixing to be safe. And when it is, it goes without saying that the employee is supposed to be fit to do the work they are employed to do.
If the employee is not ‘broke’, they should not need to be ‘fixed’. Indeed, if they appear not to be disabled, they will not need to have adjustments made. But every now and then something happens that indicates a breakdown of communication.
The employee assumes the employer knows about their needs and when those needs are not met, there is an assumption of a breach of the implied term of ‘mutual trust and confidence’. These are the legal words that frame the letter of resignation claiming constructive dismissal.
And if that breakdown of mutual trust and confidence is because of the employer’s failure to deal with disability-related adjustments, the employment tribunal will be considering not only a claim for unfair constructive dismissal, but also for disability discrimination.
This can happen at any stage of the employment process. If a disabled employee is prevented from obtaining work because of a disadvantage at interview, the discrimination claim papers are as good as on their way to the prospective employer that did not make appropriate adjustments to ensure a fair procedure.
The Disability Discrimination Act exempts employers from the duty to make reasonable adjustments for a disabled person if they do not know, and could not reasonably be expected to know, that an employee has a disability and is likely to be placed at a substantial disadvantage by a provision, criterion or practice, or by the physical feature of the premises in question.
So, consider this scenario. A job applicant has dyslexia. They do not mention this when they arrive for their interview for a new post. They do not get through the literacy tests. How is the employer supposed to know that the applicant needed more time or computer assistance to show they are capable of doing the job? The point is: could the applicant get by with a little adjustment to the interview process?
In the recent case of Eastern & Coastal Kent PCT v Grey, the claimant succeeded at the first instance in her disability discrimination claim on the grounds that the trust had failed to make reasonable adjustments in connection with her job interview.
The Employment Appeal Tribunal (EAT) upheld the trust’s argument that there cannot be any duty to make reasonable adjustments if the employer does not know, and could not reasonably be expected to know, that the employee has a disability, and is likely to be placed at a substantial disadvantage as a result.
The case was referred back to another employment tribunal for them to apply that legal proposition. However, the new tribunal that hears the case will have the benefit of the EAT’s ruling that, for the argument of the trust, or any employer in this situation, to succeed, the employer must be able to show:
No knowledge of the disabled person’s disability
No knowledge that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled
It could not reasonably be expected of the employer to know that the disabled person had a disability
It could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage compared with people who are not disabled.
In Mrs Grey’s case, it would appear that she did not mention her condition until the claim form came through the trust’s letterbox. But these criteria apply in any situation where the employer does not know of a condition that may be so subtle that it has no physical or observable manifestation, yet fulfils the disability criteria.
However, the employer cannot simply be expected to make adjustments if it does not know that they are needed or even what might be required as an adjustment.
It is a different matter if the employer ignores its duties during the course of the disabled employee’s employment. A failure to make adjustments that the employer knows should be made is very likely to amount to constructive dismissal, entitling the employee to resign.
Once the disability has been recognised, the fundamental concept of fairness required by law will be applied. It is now simpler to deal with the matter of comparison. In 2008, in a housing case – London Borough of Lewisham v Malcolm – the House of Lords determined that when comparisons had to be made, the correct comparator was a non-disabled person in the same circumstances as the disabled person.
In occupational health terms, the correct comparator in a case of long-term sickness absence of a disabled employee would be a non-disabled person who had been off sick for the same period as the disabled employee. Thus, if a long-term absentee who is disabled exhausts his contractual sick pay, it will not be necessary to make any adjustment to his sick pay if the non-disabled absentee also has the contractual limit applied. Of course, the question of reasonableness will only arise if the employer knows about the disability.
Recently, in The Child Support Agency (Dudley) v Truman, the EAT applied the criteria of the Malcolm case. The correct comparator was a non-disabled person in the same circumstances as the disabled person. Arguably, this makes it much harder for employees to show that they have been treated less favourably. It will mean that they are far more likely to fail at the first hurdle in claims of disability-related discrimination.
The reasonable adjustments sought by the claimant related to the employer’s failure to make timely provision of a suitable desk and chair for her use when working from home. She also claimed that she had been discriminated against by the employer seeking for her to take ill-health retirement because she could only work from home, which was not acceptable to the employer.
It was held that the correct comparator was a non-disabled employee unable to work full-time in an office. This part of the case has been referred back to the EAT, for determination of this question by reference to the correct comparator.
Y v Calderdale Council is an employment tribunal case heard in 2003. The employer had not made reasonable adjustments to the recruitment process for a person who stammers. Although the applicant, Y, had told the council that he stammered, he had not said that he needed more time for the interview.
The council had relied entirely on Y’s failure to notify them that he would need more time to complete the interview. In fact, more time was allowed, but not enough. Y was thereby placed at a substantial disadvantage compared with other candidates.
This is the sort of case that could still result in success for the claimant. The disability was obvious and the awareness of the duty to make the adjustments reverted to the employer.
In Tarbuck v Sainsbury’s Supermarkets Ltd, an EAT case heard in 2006, it was held that a failure to consult about reasonable adjustments for an employed doctor suffering from IBS was not in itself a breach of the duty to make reasonable adjustments. If no reasonable adjustments can be made for a disabled employee, the employer will not have acted unlawfully, even if it failed to consider the issue and discuss it with the employee.
It all comes back to basic knowledge. The employer’s blissful ignorance of disability can be overruled by the courts if the disability is utterly obvious. But, under any circumstances, the adjustments have to be reasonable. There is no perfect place of work. Even the imperfect cannot necessarily be improved enough, if at all.
Linda Goldman is a barrister at 7 New Square, Lincoln’s Inn. Joan Lewis 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