Discrimination on the basis of disability – Case law shows how employers can go wrong
“Disability discrimination” is a relatively new concept introduced by the Equality Act 2010, but it is quickly becoming an integral part of claims in the labor court. Eleanor Gelder summarizes five current case law examples for discrimination on the basis of a disability.
1. Dismissal of an employee due to absences due to handicaps
Employers must exercise caution in deciding to fire a disabled worker whose disability-related absences triggered the organization’s attendance policy.
In Griffiths v Secretary of State for Labor and Pensions, the Court of Appeal ruled that dismissal of a worker for disability-related absences that triggered the application of an attendance policy could constitute discrimination on the basis of disability.
2. Appropriate adjustments during the redundancy process
Employers who fail to make adequate adjustments in a dismissal process could risk being eligible for disability discrimination.
In the Waddingham v NHS Business Services Authority, the employee undergoing cancer treatment had to go through a competitive interview process during a redeployment exercise.
The Labor Court ruled that the employer’s failure to make reasonable adjustments for Mr Waddingham constituted discrimination on the basis of disability.
The tribunal found that a reasonable adjustment would have been to evaluate Mr Waddingham for the role without the need for a competitive interview.
Similarly, in the London borough of Southwark versus Charles, the employer knew the worker had a disability that resulted in his being unable to attend administrative meetings, including implementation interviews.
The EAT took the view that the employer’s obligation to have the employee participate in changeover interviews constituted discrimination on the basis of disability.
3. Do not consider suitable alternative employment
Discrimination based on disability
Section 15 of the Equality Act 2010 makes it illegal for an employer to treat an employee unfavorably because something arises “as a result of” his or her disability when the employer knows or can reasonably be expected to have a disability.
An employer can successfully defend a claim if it can justify the unfavorable treatment on the grounds that it is an appropriate means of achieving a legitimate end.
In a redeployment exercise, employers need to think carefully about how to maintain a disabled worker’s skills and what training may be required to successfully reinstate them.
In the Horler v. Chief Constable of the South Wales Police Department, the Labor Court found that the police had failed to fulfill their duty to make reasonable adjustments by not considering alternative positions for a police officer who was disabled due to a disability To carry out tasks on the front lines.
The police did not justify the unfavorable treatment because the means of achieving the legitimate goal of effective policing were not proportionate. As a result, it was a disability discrimination.
4. Give negative verbal advice or withdraw job offers
Negative verbal cues due to a former employee’s absence due to a disability can result in discrimination on the basis of a disability. This could also be the later withdrawal of a job offer.
In Pnaiser v NHS England and another case, the employee’s disability meant she had several extended absences and had to work from home regularly.
The EAT took the view that both the negative verbal reference by its previous employer and the subsequent resignation of a potential employer from a job offer constituted discrimination on the basis of disability.
5. Make appropriate adjustments to loyalty programs
Refusal to pay a bonus to an employee who has received a formal sick leave warning may result in a successful disability discrimination claim.
In the Landbuch v. Houghton et al. Case, EAT argued that the employer’s failure to pay workers a bonus was due to the fact that workers received a sick leave warning and therefore constituted discrimination on the basis of disability.
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