Disability and the Equality Bill
Linda Goldman and Joan Lewis explain what the Equality Bill will mean for disability discrimination and occupational health.
On this page:
Employer defence
Multiple claims
Definitions
Getting a case off the ground
Discrimination by association
Application to occupational health.
A key feature is the proposal to simplify the approach to indirect discrimination by creating a test of whether a disadvantage to particular employees has arisen where a ‘provision, criterion or practice’ has been applied to all employees.
Employer defence
Employers will be able to justify indirect discrimination in such cases if they satisfy the test of reliance on a ‘proportionate means of achieving a legitimate aim’.
The defence that there was a ‘genuine occupational requirement’ will not be available in the new legislation for employers defending a disability claim, although it will be for all other discrimination claims. However, an employer will still be able to argue to support a case that there were no reasonable adjustments that could be carried out to accommodate a disability. Examples that come to mind are the genuine occupational requirement for physical mobility for a sports coach or referee, or manual dexterity for a masseur.
Multiple claims
Employees will be able to bring a claim of more than one form of discrimination when the Equality Bill is enacted. This could give rise to such claims as disability where there are other long-standing discrimination issues that have a deleterious effect on the health and wellbeing of the victim. Consider the 1997 case of Jones v Tower Boot Co Ltd, in which the Court of Appeal decided that the employer was liable for the appalling racial harassment inflicted on one of its employees by other staff. This included branding him with hot instruments.
But consider the hypothetical scenario that the wounds caused permanent or long-term damage, leaving him with a long-term impairment of his ability to carry out his normal day-to-day activities. When the new law comes into effect, it is likely that such an employee will be able to bring claims under the disability and race provisions concurrently, without having to argue that one form of discrimination or the other was most responsible for his hurt feelings and/or psychological injury.
Definitions
One change that the Bill will not affect is the definition of disability. Although the Disability Rights Commission has been arguing for some time that the concept of ‘long-term’ is inappropriate and hoping this would be removed from the definition, that is not going to happen.
So, until the changes come into effect, employers and their legal advisers will need to work with the law as it stands, and find that equality is not a concept that extends easily to disability discrimination.
Getting a case off the ground
A major change in the law comes into effect in April 2009. It affects disability discrimination by the removal of the unnecessarily complicated dispute resolution regulations. Although the regulations were intended to simplify the legal process by ensuring there was an attempt to resolve disputes in the workplace, the complicated provisions on raising grievances have spawned a whole set of cases about whether or not an employee has the right to bring a case.
You would not think that it would take a whole court case to make someone understand how a grievance should be expressed by the affected employee, but that is what concerned the employment tribunal, and then the Employment Appeal Tribunal (EAT), in Clyde Valley Housing Association (CVHA) Ltd v McAuley in 2008.
It took two forays into court to find out that McAuley’s letter of complaint about her alleged constructive dismissal as a result of disability discrimination was not sufficient to found a claim. Her solicitors informed CVHA that it had treated McAuley in an oppressive, unfair and degrading manner, but did not say what the treatment was. They said that CVHA had harassed and intimidated her, but did not say how. They were a little more specific in alleging that she had been subjected to an unfounded disciplinary investigation and procedure, but lapsed into non-specifics by complaining that she had suffered degrading and humiliating treatment.
The final complaint was that CVHA had made no adjustments for McAuley’s disability without saying what it was that could and should have been done. To be fair, CVHA had replied to the grievance letter asking for more information, but none was forthcoming. The EAT upheld CVHA’s appeal against the case being allowed to go forward for a full hearing: the general, non-specific complaints did not suffice. For the grievance to be valid, the complainant must state ‘who’, ‘what’, ‘where’, ‘when’ and ‘why’.
The letter did not make clear allegations so the employer would not know how to investigate or resolve the problem. A grievance is not valid unless it provides sufficient information for remedial action. From McAuley’s point of view, this was particularly unfortunate as the law (until April 2009) requires full compliance with the statutory grievance procedure. Without that compliance, the claim will be, and was, struck out, regardless of the strength of the employee’s actual claim.
It is not unusual for a case to be struck out. It is a draconian measure but, until next April, the law requires full compliance with the statutory procedures even if someone has an otherwise good case.
Discrimination by association
Every now and then, a claim comes up that does not, on the face of it, seem to be well-founded when it starts. When the decision is made, how simple it all looks. Hindsight is a wonderful thing, after all. In Coleman v Attridge Law (a firm of solicitors), the employers were probably astonished that their non-disabled employee recently had the temerity to bring a disability discrimination claim against them. They argued with the force of reason that there was no basis for such a claim. The case is important because of the legal implications – that of extending rights to the carers of the disabled, but also financially. Compensation in discrimination claims is not limited, and such cases can have a profound financial impact on employers.
The key issue focused on whether a carer of a disabled person is protected by discrimination legislation. It fell to be resolved by the European Court of Justice (ECJ) recently when the employment tribunal referred the problem set by Coleman’s case. The ECJ considered the application of the Equal Treatment Framework Directive (No.2000/78). This piece of European legislation applies to the UK as a member state of the European Community. The ECJ decided that the correct interpretation of the directive is that the protection of disability discrimination legislation applies to a non-disabled person associated with (for example, a carer of) a disabled person if they suffer discrimination or harassment because of that association.
The facts set the matter in context. Coleman is the primary carer of her disabled son. During the four years of her employment, she alleged that her employer harassed her and subjected her to less favourable treatment. She was accused of laziness when she applied for time off to take care of her son and, indeed, was not permitted to have flexibility in her working hours. She alleged that her employer did not deal properly with her formal grievance about these matters.
She complained that insult was added to injury because she was subject to abusive and insulting comments applied both to her and her son. She brought tribunal proceedings on the basis that she had suffered discrimination by association with her son’s disability. Although the employer appealed the tribunal’s decision to refer the question to the ECJ to see whether the broader application of the directive should be used, the EAT permitted the case to go to Europe, where the ECJ held that discrimination by association was covered.
There is no limitation on application to people who themselves have a disability. The principle of equal treatment had to be applied to cover people such as carers of disabled people. If that were not the case, the objective of the directive, to prevent discrimination on certain grounds, would be undermined. Although Coleman is not disabled herself, she has the right to argue that it is the disability of her son which is the root of the less favourable treatment. By Article 2(3) of the directive, harassment is a form of discrimination from which the complainant is entitled to be protected. The case could therefore be heard in the employment tribunal in the usual way and subject to the same rules as apply generally in discrimination cases. Thus, the burden of proof is on the claimant to establish facts from which it may be inferred that discrimination occurred, after which it is up to the employer to show that it behaved in a particular way for non-discriminatory reasons.
The EAT, in the course of Attridge Law’s appeal against allowing the matter to go to the ECJ, indicated that it was possible to interpret the Disability Discrimination Act 1995 (DDA) as applying to people by association, rather than applying to people who are actually disabled themselves. It remains for the tribunal hearing the case to determine whether the conduct of which Coleman complains has been proved, before considering the employer’s evidence as to its actions.
Application to occupational health
The Coleman case established an extended principle, but it does not necessarily mean that there is any extended duty to make reasonable adjustments under the DDA. The right to apply for flexible working exists in the raft of family-friendly legislation, and it is only when there is a capricious refusal of an application that DDA alarm bells might be provoked into ringing. The ECJ emphasised the point that reasonable adjustments set out in the Act have the purpose of bringing the disabled into the workplace and therefore apply only to the employee or potential employees.
Discrimination by association is not a new concept. In 1984, the EAT case of Showboat Entertainment Centre v Owen concerned the white manager of an amusement arcade who was dismissed because he refused to carry out an instruction from his employers to exclude ‘young blacks’ from the premises. The court decided that the Race Relations Act 1976 applied not only to discrimination on the grounds of Owen’s race, but his attitude to race was to be taken into account.
In another case at employment tribunal level, Wilson v T B Steelwork Co. (1977), a white woman was held to have been discriminated against on racial grounds when she was turned down for a job as her husband was not white. And in Weathersfield Ltd v Sargent (1999) at the Court of Appeal, Sargent suffered discrimination by being instructed to discriminate against potential customers from ethnic minorities.
If OH involvement is sought, the key issues relate to maintaining dignity at work and the correct application of policies designed to prohibit discrimination at work. An up-to-date, regularly reviewed and accessible equal opportunities policy is the kingpin. A full investigation is needed into the issues where flexible working requests are made. The fact that a person is a carer for a disabled relative is one factor to be considered in dealing with them in a reasoned, non-insulting way. Above all, do we really need the law to tell us to have good manners and consideration for the needs of our fellow employees?
- The authors: Linda Goldman, BDS, LLB, is a barrister at 7 New Square, Lincoln’s Inn; and Joan Lewis, MCIPD, MA (Law & Employment Relations), is an independent employment law consultant, licensed by the General Council of the Bar under BarDirect.
- Any enquiry about this article may be made to Joan Lewis, tel: 020 8943 0393.
