There have been two headline decisions in the past year on aspects of the Disability Discrimination Act 1995 (DDA) that cover associative disability discrimination: a change to the comparator test to establish disability-related discrimination, and a resulting increased focus on the need for employers to show compliance with the duty to make reasonable adjustments.
These decisions mean it is essential for HR professionals to ensure relevant policies are kept up to date and acted upon. There is also the added complication of the upcoming Equalities Bill.
One of the most significant recent cases is the House of Lords decision in London Borough of Lewisham v Malcolm. This case was brought under the housing provisions of the DDA, which concerned disability-related discrimination and which are identical to the employment provisions. In this case, the lords held that the wide test for establishing the correct comparator in the Court of Appeal’s decision in Clark v Novacold was incorrect, and overturned the court’s decision.
Instead, they considered that a test much narrower in scope was required under the legislation, which is broadly that the correct comparator is a non-disabled person in similar circumstances – for example, in the case of someone dismissed for long-term sickness absence, the comparator would be a non-disabled person who was on long-term sick leave.
Previously, the test in Clark had made it easy for a disabled claimant to establish that an employee had been treated less favourably than a comparator, putting the onus on the employer to then prove justification. However, the decision in Malcolm means that it is now much more difficult for employees to prove disability-related discrimination.
It is therefore likely in future that the focus of the courts and tribunals will, instead, be on claims brought by employees in relation to whether the employer has complied with its duty to make reasonable adjustments. In the example above, if a disabled person, dismissed for long-term sickness absence, can no longer succeed in a discrimination case by comparing themselves to a person who has not been absent, they may be able to persuade a tribunal that their employer should have made reasonable adjustments to its policy on dismissing employees for long-term sickness absence.
Confirmation that the Malcolm decision applies in the employment context has been affirmed by the Employment Appeal Tribunal in the Truman v CSA and Stockton on Tees Borough Council v Aylott decisions.
Also on the subject of reasonable adjustments, the Court of Appeal recently considered the time limits for bringing a claim under the DDA where it is based on an inadvertent failure by the employer to make a reasonable adjustment.
In Matusowicz v Kingston-upon-Hull City Council, the court held that time would run from the date the employer should reasonably be expected to have made the adjustment.
This case reinforces the fact there is a positive duty on the employer to comply with the duty, and in view of the Malcolm case, it is likely employees will be focusing on their rights under this section.
The other significant disability discrimination case last year was the European Court of Justice (ECJ) decision in Coleman v Attridge Law. Here, the ECJ confirmed that the relevant EU directive covered discrimination by association and that therefore in the context of disability, a non-disabled person could be discriminated against on the grounds of their association with another person who is disabled.
Ms Coleman, who was not disabled, claimed direct disability discrimination and harassment by her employer on the grounds of her son’s disability. She alleged she had been treated less favourably than colleagues with non-disabled children.
The fact that the ECJ has clarified that such claims are within the remit of the DDA means that employers should anticipate receiving claims on this ground.
So it is not only the employee’s disability employers need to take into account, but also, whether the employee is a carer for a disabled person. If so, they should not be treated less favourably or harassed in connection with their caring responsibilities. One major area where this is likely to have an impact is in relation to any request made by a carer for flexible working.
Although carers have the right to request flexible working patterns and the right to emergency time off, this decision gives them additional protection under discrimination legislation.
The forthcoming Equality Bill aims to streamline all the discrimination strands. Disability discrimination has historically been fairly unique in respect of the provisions on disability-related discrimination and the duty to make reasonable adjustments.
The government recognised, post-Malcolm, that it needed to reconsider its proposals and, in particular, the impact on disability-related discrimination and the difficulties employees will face. At the end of last year, the government consulted on whether to remove disability-related discrimination altogether, and introduce instead the concept of indirect disability discrimination on similar lines to other discrimination strands. The consultation ended in January 2009 and initial responses to it were not positive, but we have yet to see what the government has decided on this.
In any event, the government has indicated it does not intend to change the duty to make reasonable adjustments in the Equality Bill. This duty only applies where the employer knows or ought reasonably to know of the employee’s disability. The government has acknowledged that following Coleman it needs to carefully consider the ECJ decision and its implications for the Equality Bill. It will have to ensure that associative discrimination in respect of disability discrimination is covered, and it is likely it will be covered in other discrimination strands, but this has yet to be confirmed.
It is important as a result of these decisions that HR policies take account of the duty to make any reasonable adjustments that might be needed for disabled employees, and also that managers are aware of their obligations. It is also important that they understand the scope of associative discrimination and that the DDA does not just apply to those who are disabled, but also in respect of the treatment of those who care for disabled people. HR professionals should consider whether an update training session on the DDA is necessary for managers to avoid exposing the business to unnecessary risk.
Although the duty to make reasonable adjustments is not changed by these cases, and nor are there proposals for change in the Equality Bill, it is more important than ever for employers to ensure they comply with the duty in light of Malcolm and the increased likelihood this will assume much more importance.
As emphasised in Matusowicz, this is a positive duty, and an employer is not absolved from liability if it has inadvertently failed to comply. Training managers is key, so that they are aware of and understand their duties to minimise the chances of ending up at tribunal.
- Disabled employees and tribunals are more likely to focus on the duty to make reasonable adjustments post-Malcolm.
- There are no proposals in the Equality Bill to change the duty to make reasonable adjustments. The government has consulted on whether to remove the disability-related discrimination provisions and introduce instead indirect disability discrimination. Its decision on this is still awaited.
- Remember that the duty to make reasonable adjustments is a positive one, and covers inadvertent failures as well as deliberate omissions.
- Following Coleman, an individual can bring a claim based on their association with a disabled person if they are treated less favourably or harassed in connection with their caring responsibilities.
- The government has acknowledged that associative disability discrimination is covered in the EU directive, and is considering its implications for the Equality Bill.
- Given the increasing importance that the duty to make reasonable adjustments is likely to have following Malcolm, employers should consider auditing all policies to ensure there are no potentially discriminatory practices. In particular:
- Ensure in recruitment procedures that all applicants are offered reasonable adjustments to enable them to attend and participate in the process.
- Provide disability awareness training for managers to enable them to understand their obligations in relation to making reasonable adjustments and ensuring that decisions are not made without taking this into account where appropriate.
- Ensure that the business’s equal opportunities policy covers reasonable adjustments.
- Ensure that managers are aware that associative discrimination is covered and that they understand what this means in practice.
- Ensure that any grievance or complaints procedure is easy to use and provide help and assistance where needed.
- Review policies to ensure there is provision for taking into account reasonable adjustments where needed – for example, in capability procedures, redundancy selection criteria, sickness policies, and flexible working.
- Regularly review the effectiveness of any reasonable adjustments made, and ensure the organisation acts on any findings as a result of any review.
Gagandeep Prasad is a solicitor and Caroline Buckley is a professional support lawyer at Charles Russell