“Discrimination arising from disability” is a relatively new concept introduced by the Equality Act 2010 but it is fast becoming a regular feature in claims at employment tribunal. Eleanor Gelder rounds up five recent case law examples of discrimination arising from disability.
1. Dismissing an employee for disability-related absences
Discrimination arising from disability
Employers need to tread carefully when deciding to dismiss a disabled employee whose disability-related absences have triggered the organisation’s attendance policy.
In Griffiths v Secretary of State for Work and Pensions, the Court of Appeal held that dismissing an employee for disability-related absences that trigger the application of an attendance policy could constitute discrimination arising from disability.
2. Reasonable adjustments during redundancy process
Employers that fail to make reasonable adjustments in a redundancy process could risk a claim for discrimination arising from disability.
In Waddingham v NHS Business Services Authority, the employee, who was having cancer treatment, was required to undergo a competitive interview process during a redeployment exercise.
The employment tribunal held that the employer’s failure to make reasonable adjustments for Mr Waddingham amounted to discrimination arising from disability.
The tribunal found that a reasonable adjustment would have been to assess Mr Waddingham for the role without the need for a competitive interview.
Similarly, in London Borough of Southwark v Charles, the employer knew that the employee suffered from a disability that caused an inability to attend administrative meetings, including redeployment interviews.
The EAT held that the employer’s requirement for the employee to attend redeployment interviews constituted discrimination arising from disability.
3. Failing to consider suitable alternative employment
Discrimination arising from disability
Section 15 of the Equality Act 2010 makes it unlawful for an employer to treat an employee unfavourably because of something “arising in consequence of” his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability.
An employer may successfully defend a claim if it can justify the unfavourable treatment on the basis that it is a proportionate means of achieving a legitimate aim.
In a redeployment exercise, employers must think carefully about how a disabled employee’s skills can be retained and what training may be required to successfully redeploy them.
In Horler v Chief Constable of South Wales Police, the employment tribunal found that the police had not met its duty to make reasonable adjustments because it had failed to consider alternative posts for a police officer who was unable to carry out frontline duties because of a disability.
The police had failed to justify the unfavourable treatment because the means adopted to achieve the legitimate aim – of providing effective policing – were not proportionate. Consequently, this amounted to discrimination arising from disability.
4. Giving negative verbal references or withdrawing job offers
Giving negative verbal references because of a former employee’s disability-related absence may amount to discrimination arising from disability. So too could the subsequent withdrawal of a job offer.
In Pnaiser v NHS England and another, the employee’s disability meant that she had a number of lengthy absences and regularly needed to work at home.
The EAT held that her former employer’s negative verbal reference and prospective employer’s subsequent withdrawal of a job offer both amounted to discrimination arising from disability.
5. Making reasonable adjustments to bonus schemes
Refusing to pay a bonus to an employee who has received a formal warning for disability-related sickness absence may lead to a successful claim for discrimination arising from disability.
In Land Registry v Houghton and others, the EAT held that the employer’s failure to pay a bonus to employees was because the employees had received a disability-related sickness absence warning and was, therefore, discrimination arising from disability.