Case regulation: Incapacity discrimination in 2021 – classes from current selections

The news that a dismissed employee was awarded more than £2.5m for disability discrimination and harassment has garnered a lot of headlines recently. However, there have been several other decisions this year which have highlighted some tricky issues for employers to consider when dealing with employees or job applicants with potential disabilities. Here, we round up the main learning points for employers and their advisers.

What point in time do we use to assess whether a person is disabled?

It is often important to revisit what we all think we know intuitively. The Court of Appeal’s decision in All Answers Ltd v W [2021] considers the correct date for a tribunal to use to assess whether a claimant is disabled. This can be difficult to identify as, by the time any claim reaches the tribunal, months, possibly years, will have passed.

The statutory test from Sch 1(2) Equality Act 2010 is well known:

The effect of impairment is long-term if:

(i) it has lasted for at least 12 months, or (ii) it is likely to last for at least 12 months, or (iii) it is likely to last for the rest of the life of the person affected.

The question of whether an impairment is likely to last for at least 12 months can be unclear at the time of an employer’s actions. However, this is generally apparent by the time of the hearing.

In All Answers, Mr W and Mrs R brought various discrimination claims, including claims for disability discrimination. They claimed that they suffered from depression (and, in the case of Mrs R, post-traumatic stress disorder) in August 2018, when the alleged discriminatory events took place. These events were that the office seating arrangements were changed so that they were no longer near each other and Mr W was given an informal warning.

The tribunal held that both claimants were disabled. Mr W claimed that he began to notice symptoms of depression from April 2018. Mrs R gave evidence that:

She had ceased to socialise with all but Mr W… had postponed her wedding… given up dancing… she no longer goes out on her own.

The tribunal also took note of a medical record about her from September 2018 (ie a month after the alleged discrimination took place).

The employer appealed and the case came before the Court of Appeal. In giving the court’s decision, Lewis LJ referred to the decision in SCA Packaging Ltd v Boyle [2009] that ‘likely’ in the context of ‘likely to last at least 12 months’ means ‘could well happen’. He concluded that the tribunal had not asked itself the correct question, which is whether the claimants’ impairment at the date on which the discriminatory treatment occurred was likely to last for at least 12 months. The court remitted the case to the tribunal to determine this point.

Lessons

The employer’s actions or inactions can only be judged in the light of circumstances at the time of those actions. Tribunals are not permitted to take account of events that occur after the alleged discriminatory acts. This is in accordance with the earlier Court of Appeal judgment in Richmond Adult Community College v McDougall [2008], which applied similar reasoning to the question of whether impairment was likely to recur.

Can employers avoid making adjustments by relying on someone else to help the individual?

Mallon v AECOM [2021] considered an employer’s obligation to make reasonable adjustments. Here, Mr Mallon suffered from dyspraxia and complained that AECOM had required him to apply for a job online, which required a password and use of drop-down menus. He said it would have been a reasonable adjustment to allow him to make an oral application. AECOM argued that it had asked Mr Mallon what adjustments he wanted but that he had not provided specifics. He had simply sent a sheet with his CV which explained the difficulties faced by people with dyspraxia.

In the employment tribunal, AECOM applied successfully to strike out Mr Mallon’s claim. It argued that although requiring him to complete an online application form was a provision, criterion or practice (PCP), he would not be able to establish that it put him at a substantial disadvantage. The tribunal’s judgment relied in part on the fact that someone else could have assisted Mr Mallon to make the online application.

Mr Mallon successfully appealed to the Employment Appeal Tribunal (EAT), which raised some important points of principle. There are three types of reasonable adjustments which employers may be required to make to alleviate disadvantage to a disabled person:

• adjustments to a PCP;
• adjustments to physical features of the workplace; and
• provision of an auxiliary aid.

HHJ Tayler held that the tribunal should have considered whether this was an auxiliary aid case rather than a PCP case. He noted that the Equality and Human Rights Commission’s Employment Code of Practice provides that:

An auxiliary aid is something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker.

The judge remitted the case to an employment tribunal to decide whether this was an auxiliary services case. Whether the employer could avoid making an adjustment by relying on someone else to provide assistance to the claimant remains open to the tribunal to determine on an analysis of the facts.

Lessons

Employers should not expect to be able to avoid having to make reasonable adjustments to online forms, even if their completion is not time limited. The simple fact that they will take longer for a disabled person to complete can be a substantial disadvantage.

Relying on someone else to help leaves the employer open to the claim that there was no one else who could assist or that the individual should not have been required to find external support. This may breach the employer’s duty to provide auxiliary aid such as a support worker.

When faced with a request for an adjustment, employers must properly analyse what is being asked of them. It is important to take account of all three types of reasonable adjustment and not just to focus on whether a PCP has put the person at a disadvantage.

Coping strategies do not prevent a person suffering a ‘substantial adverse effect’

A second decision by HHJ Tayler arose in Elliott v Dorset County Council [2021], in which he considered whether an impairment had a ‘substantial adverse effect’ on the claimant. While not establishing any new principles, it is helpful in setting out a clear analysis of the matters tribunals should take into account and reviews the relevant case law.

In this case, there were allegations that Mr Elliott had incorrectly recorded the hours he had worked and the council launched disciplinary proceedings. During the disciplinary hearing, his representative suggested that because of his behavioural characteristics, he should be referred to a doctor to consider if he was on the autism spectrum. He was subsequently diagnosed with an autism spectrum disorder. However, the employment tribunal concluded that although there were consequences on Mr Elliott’s life, the disorder did not have a substantial adverse effect on his ability to carry out normal day-to-day activities.

HHJ Tayler set out the four-step analysis of the evidence set out in Goodwin v Patent Office [1998]:

• Does the applicant have a physical or mental impairment?
• Does the impairment have an adverse effect upon the ability to carry out normal day to-day activities?
• Is the effect substantial?
• Is the effect long-term?

He also noted the need to be aware of the danger of disaggregation – in other words, considering each of the above four elements individually runs the risk of losing sight of the whole picture.

In reaching his conclusion that the tribunal had erred, HHJ Tayler stated that if in normal circumstances an employee has coping strategies but they may break down, for example if the person is under stress, that does not prevent them from being disabled. The focus should be on what the individual cannot do, rather than on what they can do.

The judge noted that the Act defines substantial as ‘more than minor or trivial’. In Aderemi v London South and Eastern Railway [2012], the EAT held that if an impairment is more than minor, it is substantial: there is not a smooth spectrum running from minor to substantial. The tribunal fell into error when considering the issue of substantial impairment because it compared Mr Elliott with the general public. Instead, it should have compared how he acted to how he himself would have acted if he had not had the impairment.

Lessons

When assessing whether a person is disabled, it is important to focus on the issues which the individual has raised rather than taking account of what they can do. The fact that they have coping strategies which allow them to function normally does not stop there being a substantial impairment unless those strategies never fail.

Employers must act fairly across different groups of disabled people

Generally, when considering the treatment of a disabled person, the comparison is between their treatment and that of non-disabled people. However, the European Court of Justice’s decision in VL v Szpital Kliniczny [2021] makes it clear that the Equality Directive also applies to differential treatment of different groups of disabled people.

In this case, employees who submitted a certificate after a given date confirming their disability received an allowance. Those who submitted a certificate before that date did not receive the allowance. The reason for the employer’s approach was an attempt to reduce its liability to pay a contribution to a state fund. However, the second group of employees claimed that they were treated less favourably.

The court noted that Directive 2000/78/EC uses the terms ‘another’ [person]’ and ‘other persons’. This wording does not limit the directive to requiring a comparison between disabled and non-disabled persons but permits an assessment to be made between two groups of disabled people.

Lessons

This could be relevant if an employer’s policy favours one kind of disability over another. For example, employers should be careful not to react differently to visible and non-visible disabilities, particularly if any difference in treatment has no relation to the severity of the disability.

Tribunal makes second largest disability discrimination award ever

The decision in Barrow v Kellogg Brown & Root (UK) Ltd [2021] is notable for the size of the award made by the tribunal: £2,567,831.97, which is the second largest disability discrimination award ever. The outcome is a salutary reminder of a tribunal’s ability to make a substantial award in favour of claimants.

David Barrow was a head of programme management at Kellogg Brown & Root (KBR), a US-parented defence and government services contractor. He had worked at the company in various roles since joining as a graduate trainee in 1980. Save for two years at a competitor between 2000 and 2002, Mr Barrow had worked at KBR for 36 of the 38 years preceding his dismissal in May 2018.

In 2017, Mr Barrow began to be treated for skin itchiness and redness around his torso. This was eventually diagnosed as a form of post-viral lymphoma, a cancer. Prior to this diagnosis, other treatments were attempted. One of these treatments was a steroid which began to affect Mr Barrow’s mental health, causing him to suffer episodes of mania and to be emotionally volatile.

On 5 December 2017, which was during the course of this treatment, KBR dismissed Mr Barrow. Although his work performance had been good before then, his line manager told him that ‘KBR could not employ him anymore’. He was escorted from the office and KBR wrote to staff members the following day, explaining it had let him go for poor performance.

KBR was notified of Mr Barrow’s diagnosis of cancer on 23 January 2018. For reasons not clear in the judgment, the company conducted another dismissal process, which concluded with Mr Barrow being finally dismissed on 31 May 2018, ostensibly on the grounds of a breakdown in the implied term of trust and confidence.

Mr Barrow brought successful claims of unfair dismissal, disability discrimination and harassment, although his claims for victimisation and failure to make reasonable adjustments failed.

While there were some disagreements between Mr Barrow and his manager about his progression and some strongly worded emails, the tribunal found that KBR had not identified repudiatory conduct which breached the term of trust and confidence. Instead, this was a ruse to prevent the need to go through a capability dismissal.

The tribunal deemed the second dismissal process culminating in May 2018 to be a sham aimed at demonstrating a fair process. The appeal officer was simply being used as a messenger for a predetermined decision by Mr Barrow’s manager.

Even though KBR was unaware of the cancer diagnosis at the time of the first dismissal, it was aware of the effect of the steroids on Mr Barrow’s mental health. After it became aware of the cancer diagnosis, it did not use the second dismissal process to adjust its perception of some of Mr Barrow’s conduct. In fact, it used his inability to attend meetings during chemotherapy as an indication of non-cooperation.

There was very strong evidence of pre-determination, with several emails indicating that KBR decided well before the first dismissal on 5 December 2017 to let Mr Barrow go.

Lessons

Discrimination awards are not subject to a cap. While this is not common, tribunals can award ‘career-long losses’. In Mr Barrow’s case, his age (60) and his ill-health condition (cancer) meant he was unlikely to work again. In addition, the tribunal awarded aggravated damages of £7,500 as well as an award of £25,000 for pain, suffering and loss of amenity.

Employers must conduct an open-minded dismissal process, with the decision-makers having the freedom to come to their own conclusions. Use of ostensible decision-makers as puppets in the manner attempted by KBR is likely to be exposed at tribunal, with expensive results.

Cases Referenced

• Aderemi v London and South Eastern Railway Ltd [2012] UKEAT/0316/12/KN
• All Answers Ltd v W & anor [2021] EWCA Civ 606
• Barrow v Kellogg Brown & Root (UK) Ltd [2021] ET 2303683/2018
• Elliott v Dorset County Council [2021] UKEAT/0197/20/LA
• Goodwin v Patent Office [1998] UKEAT/57/98/2110
• Mallon v AECOM [2021] UKEAT/0175/20/LA
• Richmond Adult Community College v McDougall [2008] EWCA Civ 4
• SCA Packaging Ltd v Boyle [2009] UKHL 37
• VL v Szpital Kliniczny [2021] EUECJ C-16/19

Citation reference:

Barry Stanton and Jemille Gibson, ‘Case law: Disability discrimination in 2021 – lessons from recent decisions’, (July/August 2021 #222) Employment Law Journal, https://www.lawjournals.co.uk/2021/07/02/employment-law-journal/case-law-disability-discrimination-2021/