Recent cases on the application of the Disability Discrimination Act have given new parameters for employers, employees and job applicants, when taking account of disability. A narrow interpretation of the rules relating to disability related discrimination may lead, in the short term, to a greater emphasis on the employer’s duty to make reasonable adjustments in respect of a disabled person who is put at a substantial disadvantage by a provision, criterion or practice applied by, or on behalf of, the employer, or by a physical feature of the employer’s premises.
Q In what way has the law on disability-related discrimination changed?
A In 2008, the House of Lords, in a landlord and tenant case, Malcolm v Lewisham, placed a narrow interpretation on how comparison should be made between a disabled person and others in the same or similar circumstances. The Act says that a person discriminates against a disabled person if (a) for a reason which relates to the disability, they treat them less favourably than they treat or would treat others to whom that reason does not or would not apply, and (b) they cannot show that the treatment in question is justified.
The House of Lords ignored the comparator test set out in the Novacold case and ruled that Malcolm, a schizophrenic, was not treated less favourably than any other tenant, without such a disability, would have been in the same circumstances – namely forfeiting their lease for subletting their council flat in breach of council terms.
A useful illustration was given as to how the test worked. A restaurant banning customers from bringing in a dog may do so whether the customer is blind and had a guide dog, or is a sighted person bringing in their family pet. Either way, the treatment is the same and does not constitute discrimination.
Q Does this apply to employment law?
A In a decision of the Employment Appeal Tribunal (EAT) delivered on 5 February, (The Child Support Agency v Mrs R Truman), it has been held that this test must be applied equally in an employment context and not just in a housing context. Both the House of Lords and the EAT recognise that this was far from satisfactory, but accept that amending the law is a matter for Parliament.
Q Does this have implications for employers, in their duty to make reasonable adjustments?
A Undoubtedly, job applicants and employees will now look to place greater emphasis on the employer’s duty to make reasonable adjustments. Until the legislation is amended, as expected in the Equality Bill due a little later this year, claims are more likely to succeed where it is shown that the duty has not been met.
Q Can an employer be expected to make such adjustments if it does not know of the disability?
A In Eastern and Coastal Kent PCT v Mrs J Grey the EAT held that an employer is only exempt from the duty to make reasonable adjustments if it can be shown that each of the following four matters can be satisfied:
- the employer does not know that the disabled person has a disability
- nor does the employer know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled
- nor could they reasonably be expected to know that the disabled person had a disability
- the employer could not reasonably be expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.
Q Should HR professionals be making any changes to their policies or practices as a result of these cases?
A While sound principles are enshrined in policy documents, it is imperative that both HR professionals and line managers give thought, in practice, as to whether a job applicant or employee may have a disability which should be taken into account in the treatment accorded to them. Tactful questions, asked at an early stage – for example, in the standard job application form, or at the outset of a grievance meeting – should encourage those with disabilities to share relevant information.
This should facilitate dialogue and reduce the risk of discrimination. As always, it is important to ensure that line managers and others fully appreciate the nature and extent of their duty, and the need to seek guidance when they find themselves in unfamiliar territory.
Rachel Dineley, partner, Beachcroft