Positive discrimination can be wrong under DDA

A recent ruling by the EAT shows employers need not treat disabled employees
more favourably than non-disabled staff

The duty to make reasonable adjustments under the Disability Discrimination
Act may impact on all aspects of the employment relationship. But, as the
Employment Appeal Tribunal’s recent decision in Johnson & Johnson Medical
Ltd v Filmer (EAT 1087/00) shows, a disabled employee accused of a disciplinary
offence need not be treated more favourably than a non-disabled employee.

Filmer was employed by Johnson & Johnson as a salesperson and was highly
successful. Problems started in early 1997 when a new manager was appointed.
Matters came to a head when Filmer was not interviewed for a new position when
she had been told she would be.

She rang her manager in a distressed state and said: "I hope you get a
good night’s sleep tonight because it will be the last one that you have. I
don’t think I have anything more to say".

Filmer’s manager complained about this remark to his manager and Filmer was
suspended on full pay pending a disciplinary hearing. Prior to the disciplinary
hearing, Filmer lodged a harassment complaint against her manager.

At the disciplinary hearing on 10 March, she attempted to raise her
complaint against her manager but the company, in line with its procedure, said
a grievance of this kind could not be heard simultaneously with a disciplinary
matter. The hearing was adjourned to allow Filmer to prepare her case.

After the adjournment, Filmer became ill. Initially this was certified as
psychological trauma and subsequently as nervous debility. On 5 November, she
wrote to the company stating she could not attend a disciplinary hearing in its
current format on health grounds and requested a ‘reasonable adjustment’
without specifying what she required.

The company’s response was that it would allow Filmer to make written
representations instead of attending the hearing, but the company also warned
Filmer that her ‘continued employment’ was at risk.

Eventually the company terminated Filmer’s employment on health grounds. She
complained of unlawful discrimination under the DDA.

At the hearing, the employer admitted Filmer was a ‘disabled person’ as
defined by the DDA but denied it acted unlawfully in its treatment of her.
Upholding Filmer’s complaint, the tribunal found the employer had treated
Filmer unlawfully for two reasons. First, it should have allowed the harassment
complaint to be heard at the same time as the disciplinary complaint by way of
reasonable adjustment and secondly, it should have revoked the threat of

Second, the tribunal ruled the employer was not able to rely on the defence
of ‘justification’ because the managers involved had not been properly trained
in the code of practice and therefore were ignorant of their obligations under
the DDA.

EAT decision

Allowing the appeal, the EAT ruled:

– The tribunal had failed to consider whether the adjustment ‘would have
prevented the effect in question’ within meaning of Section 6(4)(a) of the DDA.
In other words it had failed to consider whether the applicant would have been
fit enough to attend a hearing even if her complaint of harassment had been
heard together with the disciplinary allegations against her

– The tribunal was wrong in law to conclude the employer should have lifted
the threat of dismissal since this was neither required by the legislation nor
the code and would have amounted to positive discrimination when compared with
an employee who was not disabled

– The tribunal was also wrong in law to reject the defence of justification
as recent case law had established that it is open to an employer to justify
its actions even if it is ignorant of it responsibilities under Section 6 of
the Disability Discrimination Act

By Anthony Korn, a barrister at 199 Strand Chambers

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