Disability discrimination: recent cases

Peter Roser of Clyde & Co begins a series of articles on disability discrimination with a look at some recent significant cases.

Introduction

For the purposes of the Disability Discrimination Act 1995, a person is defined as having a disability if he or she has a physical or mental impairment that has a substantial and long-term adverse effect on his or her ability to carry out normal day-to-day activities.

The Act prohibits:

  • direct disability discrimination;
  • disability-related discrimination;
  • the failure to comply with a duty to make reasonable adjustments;
  • victimisation; and
  • other types of potentially unlawful behaviour (eg harassment of a disabled person, or the instruction of another person to do a discriminatory act).

(See Disability discrimination in the XpertHR employment law reference manual for more details on the Act's provisions.)

The Act is complex and a plethora of cases have been brought since its introduction. Three recent decisions that will have a significant impact on how the Act is to be interpreted are set out below.

Discrimination by association

Section 3A(5) of the Act defines direct discrimination and provides that: "A person directly discriminates against a disabled person if, on the ground of the disabled person's disability, he treats the disabled person less favourably than he treats or would treat a person not having that particular disability whose relevant circumstances, including his abilities, are the same as, or not materially different from, those of the disabled person."

However, associative discrimination (namely, discrimination against a non-disabled person on the ground of the disability of a person with whom he or she is associated) is not addressed in the Act. When faced with this issue, the employment tribunal in Coleman v Attridge Law [2006] ET/2303745/05 referred to the European Court of Justice (ECJ) the question of whether the Framework Employment Directive (2000/78/EC) protects employees against discrimination by association with a person who is disabled.

Facts

Ms Coleman is the primary carer of her disabled son. She does not suffer from a disability herself. She resigned from her job and claimed constructive dismissal and disability discrimination after allegedly suffering from a series of discriminatory acts at work. She claimed that she had been treated less favourably than parents of non-disabled children, and cited a number of alleged acts and comments as evidence of this. These included: the employer's refusal to allow her to return to her existing job after coming back from maternity leave; the suggestion that she was "lazy" when she sought to take time off to care for her son; a refusal to give her the same flexible working arrangements as her colleagues with non-disabled children; and an allegation that she was using her child to manipulate her working conditions.

Decision

In Coleman v Attridge Law and another [2008] IRLR 722 ECJ the ECJ noted that the Directive defines equal treatment as that where there is no direct or indirect discrimination whatsoever on specified grounds, including disability. Therefore it found that protection extends to anyone who demonstrates that the less favourable treatment resulted from the fact that he or she provides care to a disabled person. The ECJ noted that, although the Directive makes specific provisions for the accommodation of certain needs of disabled people, this does not mean that it affords protection only to disabled people. Indeed, the key aim of the Directive, namely to afford a level playing field for disabled people, "would be undermined if an employee in the claimant's situation cannot rely on the prohibition of direct discrimination".

The ECJ concluded that, under the Directive, Ms Coleman should be entitled to make a claim for disability discrimination, notwithstanding the fact that it is her son who suffers from the disability and not Ms Coleman herself. Similarly, the ECJ concluded that the provisions for harassment in the Directive are not limited to disabled people, and where unwanted conduct amounting to harassment is suffered by an employee in the same situation as Ms Coleman, this amounts to a breach of the Directive.

Comment

This decision has potentially far-reaching consequences for employers in all areas of discrimination law. The ECJ made clear in its judgment that its findings will apply equally to associative discrimination on the grounds of age, sexual orientation and religion and belief, as well as disability. Although Ms Coleman will need to return to the tribunal for a ruling on her claim, the ECJ decision should pave the way for tribunals to consider claims based on associative disability discrimination. However, some commentators have suggested that the Act will need to be amended to comply with the ECJ decision.

Employers will, therefore, have to consider an employee's role as a carer, and whether an individual to whom the employee is providing care is disabled within the meaning of the Disability Discrimination Act 1995. They will have to take care not to treat carers of disabled dependants less favourably than non-carers or carers of non-disabled dependants. In practical terms, it will be down to the tribunals and courts in the UK to provide some guidance on how employers might discharge this burden.

Disability-related discrimination

Under s.3A(1) of the Disability Discrimination Act 1995, an employer discriminates against a disabled person if, for a reason related to the disabled person's disability, it treats him or her less favourably than it treats or would treat someone to whom that reason does not apply, and the employer cannot show that the treatment is justified. This is disability-related discrimination.

In June, the House of Lords handed down its judgment in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL. The judgment is likely to have a significant impact on the meaning of disability-related discrimination.

Facts

Mr Malcolm was a secure tenant of a property owned by the London Borough of Lewisham. He suffered from schizophrenia, although this was not known by Lewisham at the time. In breach of the tenancy agreement, Mr Malcolm sublet the property. When it discovered this breach, Lewisham sought an order for possession of the property.

Mr Malcolm argued that his reason for unlawfully subletting the property was related to his disability, which caused him to act irresponsibly. He argued that Lewisham discriminated against him in seeking to evict him. This was rejected by the High Court on the basis that Mr Malcolm's decision to sublet had not been irrational and there was no evidence of a causal link between his decision to sublet and his schizophrenia. Mr Malcolm appealed and the Court of Appeal overturned the judgment, finding instead that there had been a causal connection, which made the possession proceedings unlawful. Lewisham appealed to the House of Lords.

Decision

In determining whether Mr Malcolm had been treated less favourably for a disability-related reason, the House of Lords considered who the appropriate comparator was, whether the reason for the treatment related to Mr Malcolm's disability, and whether the respondent must know of the disability at the time of the discriminatory act for a claim to succeed.

Prior to the decision in Malcolm, the comparator test for disability-related discrimination had been defined by the Court of Appeal in Clark v TDG Ltd t/a Novacold [1999] IRLR 318 CA. In Clark the Court of Appeal held that the appropriate comparator for disability-related discrimination was someone, who may be disabled or non-disabled, to whom the reason for the disabled person's treatment did not apply. If the Clark test had been applied in Malcolm, this would have been a comparator who had not unlawfully sublet his or her flat. However, by a majority, the House of Lords overruled Clark, and held that the correct test was whether Mr Malcolm had been treated less favourably than a non-disabled comparator who had unlawfully sublet the premises. The result of this test was that the council would not have treated such a person differently. Therefore it had not treated Mr Malcolm less favourably.

The House of Lords found that Mr Malcolm's eviction was not "related to" his disability but to valid housing policy. It was not sufficient for a claimant simply to identify a link between the disability and his having sublet the flat. The test required the decision to have been influenced in some part by the disability.

It was also held that a respondent cannot be liable for discrimination unless it knows (or ought reasonably to know) of the claimant's disability.

Comment

It is important to note that this case, brought under Part III of the Disability Discrimination Act 1995 relating to goods, facilities and services, concerned a housing authority's decision to evict a schizophrenic tenant who had unlawfully sublet his flat. It remains to be seen how it will impact on employment cases. The judgment amounts to a significant change in the identification of a comparator and this will, potentially, make it more difficult for employees to establish a prima facie case of discrimination. Nevertheless, there will be uncertainty until the courts confirm that the Malcolm test is the correct one to adopt. Until such time, employers should not change their approach to dealing with disability and disability-related matters and continue to base decisions on proper medical evidence.

In the event that the Malcolm test is the correct one to follow, while it will be more difficult for disabled employees to establish a prima facie discrimination case, it is likely that employees will seek to rely on the argument that reasonable adjustments should have been made.

Reasonable adjustments

The Disability Discrimination Act 1995 imposes a duty on employers to make reasonable adjustments to premises or working practices to take account of the needs of a disabled employee or job applicant. A failure to make reasonable adjustments is classed as a form of discrimination in itself. Further, an employer will not be able to justify disability-related discrimination (see above) where there are reasonable adjustments that could have been made, unless it shows that, even with those adjustments, the discrimination would still have been justified.

In Hart v Chief Constable of Derbyshire Constabulary EAT/0403/07, the Employment Appeal Tribunal (EAT) considered whether a police constable's probation requirements should be adjusted under the Act, where she was unable to complete her probationary period because of injuries but was otherwise competent to become a non-front-line officer.

Facts

Miss Hart was engaged as a probationary police constable from May 2001, but suffered serious spinal injuries in two accidents in 2002. The Police Regulations 2003 allow for officers' employment to be ended at any time during the probationary period if it is considered that they are not physically or mentally suited to perform their duties. Given her injuries, Miss Hart was unable to demonstrate an ability to carry out certain tasks where there was a risk of confrontation. This was one of the requirements necessary for successful completion of her probation. Although the injuries rendered her a disabled person under the Disability Discrimination Act 1995, the employer terminated her probation.

Decision

The Court of Appeal (Hart v Chief Constable of Derbyshire Constabulary [2008] EWCA Civ 929 CA) upheld the decision of the employment tribunal and EAT that the duty to make reasonable adjustments does not require employers to dilute the standards that have to be met before an individual can do a job. The Court of Appeal confirmed that the duty placed on employers is to make reasonable adjustments that might facilitate the disabled person's ability to demonstrate that he or she has met the required standards.

Considering the facts, the Court of Appeal said that training and experience in confrontational situations "is an irreducible minimum in the qualification for a police officer and that [Miss Hart], through no fault of her own, was unable to achieve it. In those circumstances, as a matter of law, the chief constable was entitled to refuse to lower the standard and confirm Miss Hart as a police constable when she would not in fact be in a position to qualify."

Comment

While the finding in Hart was that the requirement to make reasonable adjustments does not include a requirement to lower standards, care must be taken when considering this decision. The regulatory nature of the required standards to be satisfied was of primary importance. Nevertheless, the case is a reminder that tribunals will consider the reasonableness of the adjustments. The duty to make adjustments will not necessarily require the lowering of standards. It will ultimately depend on the role to be performed.

Next week's topic of the week article will be a case study on disability discrimination and will be published on 15 September.

Peter Roser (peter.roser@clydeco.com) is a solicitor at Clyde & Co.

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