Giving due thought to disability discrimination in HR issues, will aid justification in a tribunal situation
Race, sex and disability discrimination are often referred to in the same breath. But the EAT case of Heinz v Kenrick emphasised the dangers of thinking they are the same.
Disability discrimination is defined in two ways. It is the less favourable treatment of someone for a reason which relates to their disability. And it is the failure to make “reasonable adjustments” to facilitate a person with a disability in the recruitment process or the workplace. Unlike sex and race discrimination, both types of disability discrimination can be “justified”.
- Disability knowledge
The Kenrick case clarified two key principles of the law. First, the “less favourable treatment” discrimination does not depend on an employer’s knowledge of a disability. Second, the threshold for justifying less favourable treatment is relatively low.
The EAT case of O’Neill v Symm had suggested the opposite of Kenrick – that you could not treat someone less favourably because they had a disability, unless you knew about the disability. This encouraged employers to avoid asking questions about a person’s absences or medical condition.
Another EAT in the Kenrick case thought differently. The underlying principle of the Disability Discrimination Act is to encourage employers to eradicate disability in the workplace, unless they can justify it. So, it reasoned, if an employee explains their absences by saying they have ME, it does not matter if it is yet to be medically diagnosed. An employer should get its own medical evidence and consult with the employee before taking action.
What if an employee is dismissed for poor attendance before anyone knows they have a disability? This could happen if an employee is in the early stages of, say, cancer.
The first principle of Kenrick means a dismissal in these circumstances would be less favourable treatment due to the employee’s disability, and is therefore discrimination.
So are HR professionals expected to add advanced medical diagnosis to their CVs? No – the second principle of Kenrick applies here. Knowledge of a disability is relevant to the issue of justification. Provided the reason for the less favourable treatment is material to the circumstances and is not minor or trivial, then a justification defence will succeed. If no one knows about an employee’s cancer, and he or she is dismissed for unsatisfactory attendance, this will be material to the circumstances. And, provided the absences are more than minor or trivial, the justification defence will be made out.
Tribunals are expected to weigh up the interests of both the employee and the employer when deciding if this defence is successful, but there is limited scope for this balancing exercise.
A failure to make “reasonable adjustments” is also potential disability discrimination. The Act makes it clear that knowledge is relevant to this type of discrimination. An employer cannot ignore obvious symptoms, as they are deemed to know if they ought to have known about a disability.
This failure can also be justified. But logically, the threshold for justification is higher than for less favourable treatment, as the employer needs knowledge of the disability for the duty to make reasonable adjustments to apply.
So, in general, employers who can show they have considered disability discrimination and, where relevant, the duty to make reasonable adjustments, will be well placed to argue justification.
Selwyn Blyth is a solicitor at Wragge & Co.