DISABILITY DISCRIMINATION

Part of the employer's risk management process involves taking whatever steps it can to insulate itself from claims by employees.

Discrimination is an area where the employer can be vulnerable to claims. It is important that management understands the issues, that the employer has the necessary policies in place and that all members of staff and the workforce are trained to have an awareness and be alert to the issues.

In this article we look at disability discrimination.

THE LEGAL BACKGROUND

Definition of disability

The definition of disability is as follows: "a person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long term effect on his ability to carry out normal day to day activities."

The following points are important:

• The definition includes people who have had a disability even though they are no longer disabled.
• An impairment will only be regarded as having a long term effect if it has lasted or can reasonably be expected to last for at least 12 months.
• An impairment is to be taken as affecting normal day to day activities if it affects one of a number of faculties including mobility, manual dexterity, ability to lift, carry, speech or other senses or memory.
• Progressive or recurring conditions and severe disfigurement will generally meet the "substantial adverse effect" test.

One key factor of the definition is the concept of the condition having a substantial and long term effect on people's lives. The concept has been extended to include conditions where there is a potential for substantial and long term effects on people's lives. It is now clear that the Act covers people who have been diagnosed with conditions such as cancer, HIV and MS but who are not yet showing signs of their condition or illness.

It is the responsibility of the company and its management to identify that an employee may be disabled and then to take the appropriate steps.

Types of discrimination

The DDA prohibits five different types of discrimination:

• Direct discrimination
• Disability related discrimination
• Failure to comply with the duty to make reasonable adjustments
• Victimisation
• Harassment

Direct discrimination

A person discriminates against a disabled person if on the ground of the disabled person's disability they treat the disabled person less favourably than they treat or would treat a person not having that particular disability whose relevant circumstances, including abilities, are the same as or not materially different from those of the disabled person.

Comparison has to be made with how the alleged discriminator treats or would treat a person not having that particular disability whose relevant circumstances, including his or her abilities, are the same as or not materially different from those of the disabled person ("the comparator").

If the disabled person suffers less favourable treatment than the comparator then the employer is guilty of direct discrimination.

The DRC Code gives the following useful example: "A disabled person who applies for an administrative job which includes typing is not allowed to use her own adapted keyboard and types a test document at 30 words per minute. Her speed with the adapted keyboard would have been 50 words per minute. A non-disabled candidate is given the job because her typing speed on the test was 45 words per minute with the same accuracy rate. This is not direct discrimination as the correct comparator would be a non-disabled person typing at 30 words per minute (though the disabled person may have good claims in relation to failure to make reasonable adjustments and disability related discrimination)."

Disability related discrimination

Disability related discrimination occurs if, for a reason which relates to the disabled person's disability, the discriminator treats them less favourably than he treats or would treat others to whom that reason does not or would not apply and he cannot show that the treatment is justified.

Disability related discrimination occurs when the reason for the less favourable treatment relates to the disability but is not disability itself.

The approach to determining the reason for the treatment involves an enquiry into the alleged discriminator's subjective state of mind to determine the substantial or effective reason why it acted as it did. The reason for less favourable treatment may well relate to the disability even if the employer did not know of the disability.

The comparison exercise must be undertaken with some care. The appropriate comparison is made with a non-disabled person or a person disabled in some other way but the disability-related reason must not apply to him or her. So, for example, where a disabled employee is dismissed for taking six months' sick leave and the need to take the leave arose as a result of his or her disability, the appropriate comparator is a non-disabled person who did not take six months' sick leave. The comparator is not a non-disabled person who took six months' sick leave for a reason unrelated to disability.

Justification of disability-related discrimination

If it is possible to justify less favourable treatment then the employer has a defence to a claim for disability related discrimination. For the defence to succeed the employer has to meet strict criteria.

Such treatment can be justified if, but only if, the reason for the treatment is:

• Material to the circumstances of the particular case (which means that there must be a reasonably strong connection between the reason given for the treatment and the circumstances of the case), and
• Substantial (which means that the reason must carry real weight and be of substance).

Justification must be considered in the light of the information before the employer at the time it took the relevant decision.

If an employer is under a duty to make reasonable adjustments but fails to comply with that duty, its less favourable treatment of a disabled employee cannot be justified unless it would have been justified even if it had complied with that duty.

A useful example is as follows: an employer who dismisses a disabled employee for being unable to type at a certain speed which it requires of all employees would be required to demonstrate that even had it made all reasonable adjustments, such as the provision of an adapted keyboard, the shortfall in the disabled employee's typing speed would nevertheless have been so substantial as to justify dismissal. If providing the adapted keyboard would have meant that the disabled employee could have attained the required speed, the dismissal cannot be justified (paragraph 4.2.2 DRC Code).

Duty to make reasonable adjustments

Where "any provision criterion or practice applied by or on behalf of an employer or any physical features of premises occupied by the employer places the disabled person at a substantial disadvantage in comparison with persons who are not disabled, the employer has a duty to take such steps as it is reasonable, in all the circumstances of the case, to prevent the provision criterion or practice or physical feature having that effect."

Provision criterion or practice

The phrase "provision criterion or practice" includes any arrangement.

The phrase is given a broad construction to include almost anything related to the job such as contractual and non-contractual benefits, selection and interview procedures and working conditions.

Arrangements are job-related.

Substantial disadvantage

The duty to make reasonable adjustments does not arise simply because an employee is known by an employer to be disabled. The employee must also be placed at a substantial disadvantage.

A substantial disadvantage is one that is not minor or trivial. The duty to make reasonable adjustments only arises when the employee is placed at a substantial disadvantage in comparison with persons who are not disabled. This does call for a comparative exercise to be carried out.

Making adjustments

Where a disabled employee is placed at a substantial disadvantage by a provision criterion or practice or physical feature the employer is under a duty to take reasonable steps to rectify that disadvantage.

The DDA sets out a non-exhaustive list of steps which may be taken by the employer including:

• Making adjustments to premises.
• Allocating some of the disabled employee's duties to another employee.
• Transferring the disabled employee to fill an existing vacancy (whether at the same level or at a more senior or junior level).
• Altering the disabled employee's hours of work or training (which may include allowing a phased return to work).
• Assigning the disabled employee to a different place of work or training.
• Giving or arranging training or mentoring.
• Acquiring or modifying equipment.
• Providing a reader or interpreter.
  

The true legal position is that it is essential that an employer undertakes appropriate assessments in respect of disabled employees in order to identify whether or not they are placed at a substantial disadvantage and, if so, what adjustments may reasonably be made.

Reasonableness

Whether or not there is a duty in a particular case will most often depend on whether the adjustment was one that was reasonable. The test of reasonableness required by the DDA is objective and therefore determined by the tribunal.

The DDA provides that the following factors must be taken into account:

• The effectiveness of the step in ameliorating the disadvantage.
• The practicality of taking the step.
• The financial and other costs which would be incurred by the employer and the extent to which the step would disrupt any of its activities. It would be reasonable for an employer to spend at least as much on an adjustment to enable the retention of a disabled person including training as might be spent on recruiting and training a replacement.
• The financial and other resources available to the employer.
• The availability of external financial or other assistance.
• The nature of the employer's activities.
• The size of the undertaking.

The effectiveness of the proposed adjustment is likely to be the key question.

Employer's knowledge

The employer is only under a duty to make reasonable adjustments where he knows or could reasonably be expected to know that the person has a disability and is likely to be placed at a substantial disadvantage.

Is positive discrimination required?

Compliance with the duty to make reasonable adjustments may well require an employer to afford a disabled employee more favourable treatment.

Justification no longer a defence
There is no defence of justification in relation to the duty to make reasonable adjustments.

The importance of reasonable adjustments

The key points are:

• The duty to consider making reasonable adjustments ultimately falls on the employer.
• The question of whether an adjustment is reasonable in the circumstances is one for the tribunal.
  

Victimisation and harassment

The employer must ensure that employees who have made complaints about disability discrimination or support others who have made complaints or raised issues or concerns about disability discrimination are not victimised in any way.

It is equally important to ensure that disabled employees are not subject to bullying or harassment.

If the employer becomes aware of victimisation, the victimisation should be dealt with under the company's disciplinary policy. If the employer becomes aware of any bullying or harassment, it is important that the employee be referred to the Equal Opportunities Policy and be invited to invoke the protection granted by that policy.

Prompt action both with regard to victimisation and harassment is essential. Otherwise the company will be liable to pay compensation to the victim.

PRACTICAL CONSEQUENCES

There is no limit to the compensation which a tribunal can award against an employer found guilty of disability discrimination. It is extremely important that from a risk management point of view all possible steps are taken to avoid claims being brought.

Managers within the employer's business must be extremely vigilant. Managers should keep a look out for warning signs and if there is any reason to suspect that an employee may be suffering from a disability or any hint or suggestion then action should be taken. In all cases of disability where there are any circumstances giving any cause for concern, the employer should consider changes to ensure that there is no discrimination or other unlawful treatment. The employer is under a duty to do whatever it can to avoid discrimination occurring and to make reasonable adjustments in favour of disabled people.

Generally speaking, in all cases of disability or suspected disability the employer should engage specialist opinion. Medical specialists should advise on the current condition of the employee and the prognosis for the future and an occupational health specialist should advise on how the medical situation impacts on the workplace and what adjustments can and should be made. Often the occupational health specialist will obtain specialist medical opinion itself rather than the employer having to do that.

It is important that the employer ensures that the occupational health specialist has a full and comprehensive understanding of the working of the business, the role of the employee and the conditions in which the employee operates.

No decision should be taken about the employee's future without a full and open discussion with the employee concerned.

The employee should be given a copy of the specialist's opinion which has been obtained unless it is one of those rare cases where it would be harmful for the employee to see the opinion.

The employee should be invited to a meeting to discuss the specialist's opinion and the recommendations which have been made by the specialist. The invitation to the meeting should be in writing and the meeting should be scheduled so that the employee has the opportunity to take advice prior to the meeting. It should be made clear in the letter convening the meeting that the company is happy for the employee to be accompanied by a friend, representative or trade union representative at the meeting.

At the meeting the company should give the employee and the representative (if one is present) every opportunity to put his or her point of view.

The company should then carefully consider the overall situation including the opinion and what the employee has had to say or what has been said on his or her behalf. In deciding what action to take the company should carefully consider the duty to make reasonable adjustments.

A list of possible adjustments is set out above. Those adjustments are the ones which are set out in the Disability Discrimination Act by way of example. The employer should also consider whether there are any other options and, if so, whether those options are reasonable.

The decision of the employer should be notified to the employee in writing. The written notification should be full and comprehensive. In particular, where it has not been possible to accommodate an adjustment which has been sought by the employee or recommended by the occupational health specialist then the reasons must be carefully and thoroughly explained. The employee should be reminded of his or her right of appeal and of the right to invoke the grievance procedure. Reference to the appeal procedure and the grievance procedure should be included in the company's decision letter.

It is anticipated that it will only be in very rare cases that the recommendations of the occupational health specialist cannot be adopted. Where those recommendations are adopted, it is important that the company ensures that the recommendations are put into practice and where there is a need for ongoing action that that ongoing action is followed through.

There will be occasions when a member of staff has a disability or some other impairment and as a result the employer considers that it has no option but to part company with the employee. Great care must be taken in those situations. Generally speaking, the employer is advised to consider invoking its performance/capability policy.

Victimisation and harassment must also be considered as part of the anti-discrimination strategy. Managers within the business should be vigilant to ensure that employees are not in any way victimised as a result of any steps taken with regard to policies, procedures or actions in relation to the disability and managers must also ensure that disabled employees are not subject to bullying or harassment.

Allegations of victimisation should be dealt with under the disciplinary policy and allegations of harassment should be dealt with under the equal opportunities policy.

As a matter of good practice it is sensible to consider carrying out a risk assessment when an employee returns to work. It is probably appropriate to carry out a risk assessment in all cases other than where the absence has been as a result of a minor ailment. The need for adjustments must be considered in the light of the outcome of the risk assessment.

The board/management team is well advised to formally review the workings of the equal opportunities policy on a six month basis and if, as a result of the review any steps are necessary, take those to prevent discrimination occurring.

Finally, the watchwords are:

• Awareness
• Vigilance
• Manage the risk
• Training
  

The relevant policies are:

• Equal Opportunities Policy
• Attendance Policy
• Capability Policy

For more information contact Phillip Hoskins
Direct Dial: 01522 781474
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