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 succ