Are ‘discrimination arising from disability’ claims a straightforward path to employment tribunal wins?
The number of claims by the labor court for discrimination on grounds of disability appears to be increasing. John Charlton examines what’s behind the trend and asks how future developments could affect the way employers are managing disabled people at work.
Disability discrimination was introduced in the Equality Act 2010 to prevent disabled people “from being treated unfavorably because something is created as a result of their disability”. Anecdotally, the number of discrimination based on disability claims appears to be increasing. Do employees accept this as a relatively easy route to success in labor courts?
Joanna Marshall, Employment Lawyer at Charles Russell Speechlys believes this is the case. “One of the reasons [for the rise] This is because case law seems to make it increasingly easy for applicants to successfully file this type of application, ”says Marshall.
“In the recent Risby v Waltham Forest case, the Employment Appeal Tribunal (EAT) ruled that the fortuitous association between unfavorable treatment and disability does not have to be very strong to discriminate on a disability claim. Even if the link between an individual’s behavior and his or her disability appears to be small, a tribunal may find that this is sufficient to constitute discrimination. This has significantly expanded the scope of discrimination on the basis of disability. “
Naeema Choudry, work partner at Eversheds, agrees and suggests that labor court applicants may bring disability discrimination claims as it is more difficult to win claims for an employer’s failure to make reasonable adjustments.
“In practice, it is not difficult for an applicant to determine if they are disabled,” says Choudry. “In many cases, a number of facts can lead to concurrent disability discrimination claims and failure to make appropriate adjustments, and many claimants take a belt-and-braces approach and make both types of claims.”
She adds that “from a legal point of view” discrimination on the basis of a disability claim is “usually much easier” than “trying to make a reasonable adjustment”.
Martin Pratt, Employment Partner at Gordon Dadds, said, “As part of government welfare reforms, more and more people with disabilities are in the workplace. This is positive, of course, but in many cases employment practices have not kept pace – which has led to more entitlements. “
Is discrimination on the basis of disability claims increasing?
Justice Department (MoJ) numbers for legal proceedings do not break down disability discrimination claims by case type. If anything, they show that such cases have fallen altogether. In 2015/16, the MoJ recorded 3,183 cases of disability discrimination in labor courts, compared to 7,260 in 2012/13.
To put this into context, there were 66,096 multiple and 16,935 individual claims in labor courts in 2015/16. In 2012/13 there were 136,837 multiple and 54,704 individual cases that were examined by labor courts.
What the future holds for a disability in employment
In 2015, the Cameron government committed to closing the employment gap between disabled and non-disabled people.
According to the Work and Pensions Select Committee, the employment rate among disabled people was 46.7% in 2015 compared to 80.3% for non-disabled people. Halving this gap would mean 1.2 million more disabled people in the workplace. According to the Disabled Living Foundation, there are more than 6.9 million disabled people of working age, or 19% of the working population.
A green paper on how to get more disabled people into work is planned by the end of this year.
Disability UK wants the upcoming Green Paper to “include stronger incentives and levers for employers to encourage them to employ more disabled people”. She would like: employers must be forced to publish figures about how many disabled people they employ. Employers applying for government contracts to show they have solid experience employing disabled people; and more support to help them find a job.
The Resolution Foundation wants the paper to recommend the expansion of the Access to Work program and calls for a year of “Return to Work” for disabled people on sick leave due to their disability, as well as a statutory sick pay discount for employers who Pay sick pay to disabled employees.
Of course, the introduction of tribunal fees has significantly reduced the number of tribunal claims, including discrimination based on disability. Individual court rulings can provide clues as to how the case law on disability discrimination is evolving.
Key Cases of Disability Discrimination
There are three outstanding cases for Hogan Lovell’s partner Ed Bowyer and senior support attorney Helena Davies: G4S Cash Solutions (UK) Ltd v Powell; Risby v London Borough of Waltham Forest; and Griffiths v Secretary of State for Labor and Pensions.
In G4S Cash Solutions (UK) Ltd v Powell, the EAT found that it would have been a reasonable adjustment for the employer to provide wage protection to an employee who was transferred to a less well-paid job because of a disability. In Risby, the EAT confirmed that, for the purpose of disability discrimination, it is sufficient if disability is, among other things, an effective cause of unfavorable treatment.
And Griffiths had a duty to make appropriate adjustments to an absence management policy that included alert trigger points, even though Bowyer and Davies, according to what they knew, “it was not appropriate for the employer to make the adjustments in question”.
Bowyer and Davies believe the Powell case is important because the EAT believed that “there was no reason not to adjust wage protection appropriately, such as allowing additional (paid) sick leave or rehabilitation”.
On Risby: “There were two factors that led to the applicant’s dismissal – physical disability and a short temper. The EAT acknowledged that disability need only be an “effective cause” of unfavorable treatment for a disability discrimination claim to be effective. There is no direct link requirement. “
Pratt points out two cases: Pnaiser v NHS England and Lamb v The Business Academy Bexley. In the Pnaiser case, Pratt said: “It has been found that the provision of a negative illness-related notice related to a disability and the resulting withdrawal of a job offer constitutes disability discrimination by the employer.”
In Lamb, “it was found that proper employer investigation of an employee’s complaints and provision of an outcome that would enable the employee to return to a safe and non-discriminatory work environment was an appropriate adjustment for disability discrimination purposes. This shows that the duty to adapt appropriately is very broad and employers should not think too narrowly. Pnaiser is important in that it reminds employers that the scope for discrimination on the basis of disability extends beyond termination of employment. “
Another case, Nally v Freshfields Care, involved a caregiver claiming disability discrimination under the Equality Act 2010. Nally was fired after using abusive language to a resident suffering from dementia. He claimed he suffered from post-traumatic stress disorder (PTSD), for which he received counseling. The Labor Court ruled that the employer should have realized that Nally had PTSD and should have sought further medical advice and acted accordingly. Nally received £ 8,514.
Finally, in Land Register v Houghton and Others, a 2015 case, the EAT upheld the tribunal’s earlier view that five disabled applicants were discriminated against based on their disability when they were excluded from a bonus program based on their sick leave records. They had received formal warnings for their absence excluding them from bonuses.
The EAT confirmed the tribunal’s view that the formal warnings were due to absences due to disability.
Extension of the definition of disability
In the meantime, employers may be concerned that definitions of disability are likely to expand. The 2010 Equal Opportunities Act defines a disabled person as a person with a disability if they have a physical or mental impairment that significantly and long-term affects their ability to perform normal daily activities.
This clearly leaves room for interpretation. What are the likely trends?
Marshall says, “As awareness of mental health issues in the workplace grows, I expect there will be more disability claims related to mental illness in the next few years.”
Regarding obesity, Marshall points out that the EAT found in Walker v. Sita Information Networking Computing that “obesity is not self-harm, but the effects of obesity can cause an applicant to become disabled. This arguably opened the door to more disability discrimination claims [from the obese]However, applicants must provide medical evidence of physical or mental impairment. This may be the reason why no significant increase in such claims has been reported to date. “
Bowyer and Davies see a trend in the relationship between illness, behavior, and disability. For example: “When does an employer have constructive knowledge about a worker’s disability? What is the current state of absence management procedures with regard to appropriate adjustments? What are the points if an employee claims that misconduct is related to his or her disability or was caused by it? “
In Choudry’s view: “We are increasingly seeing conditions that are not themselves a disability, but can cause symptoms. Obesity is a prime example. After Brexit, the way courts define disabilities may change. This is because, in EU law, the concept of disability examines the impact of the impairment on “normal daily activities” which may or may not include work-related activities depending on the professional. “
What can employers do to reduce the risk of disability discrimination?
According to Pratt, pre-employment health questionnaires can be used under the Equal Opportunities Act to determine if an employee has a disability. “A properly drawn up questionnaire will help employers to determine if there are any mental or physical disabilities that may require action,” he says. “If a candidate does not disclose, upon request, that he or she has a ‘hidden’ disability, it is difficult for him or her to say that the employer should have constructive knowledge of that disability when an application is made to the labor court.”
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