Disability discrimination: case study

This week Amy Clark of Osborne Clarke outlines a case study on disability discrimination.

Scenario

A Limited is a large company that wants to recruit a senior administrative assistant. The HR manager places an advert in the local newspaper to this effect. The advert states that a driving licence is required (although driving is only a very small part of the job) and that all applicants must obtain an application form by phoning the HR department. The advert provides only the company's telephone number and does not provide a contact address.

Sophie is hard of hearing and wears a hearing aid. This means that she can hear to a certain extent, but it is still difficult for her and without the hearing aid she cannot hear very much at all. She has all the required qualifications and experience set out in the advert.

The advert is discriminatory towards Sophie (and other potential applicants who are hard of hearing or deaf) as it requires applicants to apply by telephone initially. Sophie may be able to do this with a specially adapted phone, but potentially this is a barrier for her that people without hearing loss would not have to deal with. This would therefore constitute disability-related discrimination.

The advert also discriminates against disabled applicants by requiring candidates to hold a driving licence, where the need to drive is not essential to the job. It is, however, lawful to include certain criteria such as holding a driving licence in a job advert where this is necessary for the job.

Sophie herself would not be entitled to bring proceedings in relation to the discriminatory advert as it is only the Disability Rights Commission (DRC) that can do so. Sophie would need to raise the issue with the DRC, which would then decide whether to take action.

From 5 December 2005 the DRC will also be entitled to bring proceedings against the newspaper for publishing the discriminatory advert.

Sophie obtains an application form by asking a friend to phone on her behalf, and sets out details of her disability on the form. She is asked to attend an interview. The Company does not ask her whether it needs to make any special arrangements to make sure that she is not disadvantaged by her disability. The interview is held in a large room. It is a hot day so some of the windows are open and there is background noise from the traffic. As part of the interview some members of staff deliver a presentation regarding the company and the job. The candidates, including Sophie, are then asked questions based on the presentation.

Because of the size of the room and the background noise Sophie cannot hear the presentation very well and she also has problems with the interviewer's questions. She often either mishears them or has to ask the interviewer to repeat them.

Sophie is not offered the job. When she writes to A Limited asking why she was turned down, the company states that her rejection was due to her poor performance at interview.

It is likely that not offering Sophie the job would constitute disability discrimination.

Sophie's condition would constitute a disability because the fact that she is hard of hearing has a substantial and adverse effect on her ability to carry out normal day-to-day activities and is expected to last for at least 12 months.

One point to note is that Sophie's condition should be assessed without reference to any treatment that she is receiving, such as her hearing aid. Therefore, for the purposes of establishing whether or not she suffers from a disability, it is necessary for the effect of her deafness without her hearing aid to be considered.

If Sophie can show disability discrimination it is likely to be disability-related discrimination because the reason that she was not offered the job was her performance at interview, which is directly related to her disability. A Limited may be able to justify such treatment if it can show that the reason for the treatment was both 'material' to the circumstances and 'substantial'. This may be the case if, for example, the job primarily involves answering the telephone or doing audio typing (although the company would still need to consider whether any adjustments could be made to the role).

It may be direct discrimination if the reason for not being offered the job was 'on the grounds of' her disability. This may be the case if the reason why Sophie was not offered the job was due to the interviewer's assumptions that she would not be capable of doing the job because of her disability. This would be direct discrimination because, without such assumptions, the interviewer would have considered her individual abilities. A Limited would not be able to justify direct discrimination.

A Limited has failed to comply with its duty to make reasonable adjustments during the interview and selection process. Once the duty to make reasonable adjustments arises, ie where a provision, criterion or practice of the employer or an aspect of the employer's premises places a disabled person at a substantial disadvantage compared to a non-disabled person, the failure to make reasonable adjustments cannot be justified. The key issue is what is 'reasonable'.

Having received Sophie's application form, which clearly stated that she was hard of hearing, A Limited was placed under a duty to make reasonable adjustments in the interview process so that Sophie could compete equally with the other candidates. As part of this, A Limited should have asked Sophie what support she required at the interview. This might have included providing an induction loop in the interview room, closing the windows to shut out the background noise and allowing Sophie to read the text of the staff presentation in advance to allow her time to prepare.

We now consider the scenario where A Limited made the required reasonable adjustments to the interview and selection process and offered Sophie the job.

A Limited has a duty to ensure that Sophie has the same opportunities, facilities and services as other members of staff.

It must consider what reasonable adjustments it should make to allow Sophie to do the job and discuss these with her. In doing so, A Limited should consider what substantial disadvantage Sophie could suffer; whether the disadvantage is caused by one of its provisions, criteria or practices or a physical feature of the premises; what steps it could take to remove the disadvantage; and whether it is reasonable to take such steps.

The reasonable adjustments in this case may include:

Government funding is available to employers for making reasonable adjustments for disabled people, particularly in relation to providing specific equipment or adapting the workplace. When deciding whether it is reasonable to make a particular adjustment, A Limited should investigate what funding it can obtain, and take this into account when considering the cost of the adjustment.

Sophie asks to take time off to attend her regular audiology appointment. However, she is told to take the required time out of her holiday entitlement.

This request will be covered by the duty to make reasonable adjustments. Therefore, if A Limited does not permit her to take the time off and cannot show that its conduct is reasonable, this would constitute disability discrimination.

Sophie's hearing deteriorates over time and she becomes completely deaf. She wants to continue working and is still capable of doing the majority of her job well. Sophie asks A Limited to train other employees in her team to communicate by sign language. The company refuses because this would involve expense and a number of people taking time out of the office.

A Limited must consider what further reasonable adjustments it can make to allow Sophie to continue working and discuss these with her.

It is no longer possible to justify a failure to make reasonable adjustments once the duty arises. However, A Limited could argue that the adjustment Sophie has requested is not reasonable. This would depend on the circumstances.

A tribunal will consider (amongst other things) the size and financial resources of the company and how effective and beneficial the adjustment would be. Here it is likely that it would not be reasonable to train the whole team in sign language. However, it may be reasonable for Sophie's manager to learn sign language. In addition, if, for example, Sophie has to attend important training, it may be reasonable for A Limited to arrange for a sign language interpreter to attend the training.

One of Sophie's colleagues, Frank, makes fun of her by calling her names relating to her deafness. He is generally nasty to her and makes life difficult for her because of her disability.

Sophie brings a grievance regarding his conduct, and one of her other colleagues, Elizabeth, assists her in doing so. Elizabeth accompanies Sophie to a grievance hearing and later does not receive a promotion that she was likely to get because of having assisted Sophie with her grievance.

Frank's conduct may constitute harassment if it 'had the purpose or effect of violating [Sophie's] dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment' for her. It would assist A Limited in dealing with issues of harassment to have clear policies regarding treatment of disabled people and equal opportunities.

Elizabeth could bring a claim of victimisation against the company on the basis of her treatment.

The situation at work with Frank gets so bad that Sophie feels that she cannot go to work. She is signed off work suffering from work-related stress and anxiety. Sophie really enjoys her job and feels very lonely at home. She begins to suffer from depression.

A Limited should consult with Sophie regarding the steps that the company can take to encourage her back to work. These may include taking disciplinary action against Frank, training Frank in being 'deaf aware' or moving Frank or Sophie to another department.

Sophie's contract of employment, in line with A Limited's normal practice, states that during sickness absence she will receive full pay for four weeks and half pay for a further four weeks before going on to statutory sick pay.

Sophie complains when the company reduces her pay and makes it clear that if the company dealt with Frank's conduct towards her she would be perfectly able to come back to work. This is supported by a doctor's report.

Following recent case law (Nottinghamshire County Council v Meikle [2004] IRLR 703 CA), A Limited will need to consider seriously whether to maintain full pay for Sophie in these circumstances. A failure to do so may well constitute disability discrimination because adjusting sick pay provisions is a reasonable adjustment that a company should consider.

Depending on the circumstances, Sophie may also be able to claim disability discrimination on the basis of her depression. Under new provisions of the Disability Discrimination Act 1995, which come into force on 5 December 2005, it will no longer be necessary for her to show that she has a 'clinically well-recognised' mental illness. She would, however, still need to show that the depression had a substantial and adverse effect on her day-to-day activities and was likely to last for 12 months or more.

The next topic of the week article will be the first in a series on forthcoming amendments to the TUPE legislation and will be published on 5 September.

Amy Clark is solicitor in the employment department at Osborne Clarke (Amy.Clark@osborneclarke.com)

Further information on Osborne Clarke can be accessed at www.osborneclarke.com