Disability discrimination update

According to para. C3 of the Guidance, the term "normal day-to-day activities" does not include work of any particular form because no particular form of work is "normal" for most people. Consequently, an industrial tribunal must not judge the question of whether or not a person has a disability by what he or she is able or not able to do at work; and the fact that an impairment disables the person concerned from doing his or her job does not necessarily mean that he or she is a "disabled person".

In O'Neill , the employee's impairment was such that she was unable to walk far without getting out of breath; cramps and "pins and needles" made it painful and awkward for her to type or hold a pen; she had problems maintaining her balance and dropped things; she suffered from diarrhoea and bladder dysfunction; she had difficulty holding steady a tray with cups of coffee on it; she also found it difficult to remember names or telephone numbers, and had short-term memory losses; and she had especially poor concentration.

In Howden , the employee's impairment was such that, without effective pain control, he had to lie down and was unable to walk; he lost the use of his hands; he was doubled up; he suffered spasms; and he had a speech impediment. In Hall, a foreman suffered from severe, left-sided ocular aching radiating to the back of his head which affected his eyesight: he had a "left paracentral scotoma" which varied in size. In Lang , the employee's impairment affected her ability to concentrate and understand. At times she seemed totally lost or would just sit and stare at her computer. She also became confused.

In Tarling v Wisdom Toothbrushes Ltd, a shiftworker's club foot had caused a progressive disturbance of her bone structure, as a result of which she began to experience sciatica and other symptoms of pain and discomfort. These affected her mobility and ability to carry everyday objects. She was unable to stand for long periods; she could not walk her dog very far or go upstairs more than twice a day; and she had to get a taxi back from the shops. In Mansfield v Saunders, a care assistant's recurrent back problems had similar effects. She found it difficult to get in and out of the bath, had difficulty putting her underwear on and could not take washing out of the washing machine. She also could not carry washing downstairs in a basket.

In Meisel, by contrast, the tribunal found that another care assistant's back condition did not affect her ability to move or carry everyday objects. The only difficulty that she identified was in relation to moving heavy furniture, which had been part of her former cleaning job, and occasionally carrying too many shopping bags in one hand. That had to be viewed in the light of the employee's other evidence that she had no home help, recently had her mother to stay convalescing after an operation, rode a bicycle and drove a car without any difficulty.

In Quinlan v B&Q plc, the EAT upheld an industrial tribunal's conclusion that a general assistant at a garden centre was able to lift everyday objects despite the fact that, following open-heart surgery, he was unable to carry out heavy lifting or, therefore, to do his job. That was a question of fact for the tribunal having regard, as it did, to para. C18 of the Guidance, which appeared to the EAT not to be linked to the particular employment of the employee. Rather, that guidance was to be considered as a matter of principle, so to speak, without regard to the particular duties under any particular employment.

Substantial adverse effects

Paragraph A1 of the Guidance says the requirement that an adverse effect be "substantial" reflects the general understanding of "disability" as a limitation going beyond the normal differences in ability which may exist among people. A "substantial" effect is more than would be produced by the sort of physical or mental conditions experienced by many people which have only minor effects. It is one which is more than minor or trivial.

In Foord v J A Johnston & Sons, an industrial tribunal found that a shopworker's fallen arches in her feet, which were the result of "joint hypermobility due to lax ligaments", did not have a "substantial" adverse effect on her mobility. She could not stand or be on her feet for prolonged periods despite wearing proper shoes and insoles. However, she coped perfectly well in the shop when working normal hours (from 8 am to 2 pm six days a week). The only difficulty she experienced was when on one occasion she worked two extra hours.

In Cook v Kitchen Range Foods Ltd, similarly, an industrial tribunal found that a production-line worker's back pain did not have any "substantial" adverse effect on his mobility or ability to lift everyday objects. He had informed his employer that his back became painful after about two hours of standing in one place, and that heavy lifting exacerbated the pain. However, he also claimed that he would have been happy to do another job, had it been offered to him, which would have required him to be on his feet all day; and he testified to the tribunal that he was able to stand for up to two hours without experiencing any problems. The job also involved lifting items which weighed as much as the heaviest everyday objects, but the employee was indicating that the amount of lifting required would not have been beyond him.

In Foster v Hampshire Fire & Rescue Service, from time to time, and particularly following either an asthma attack or a migraine, a clerical and administrative assistant suffered some impairment. However, an industrial tribunal found that the degree of impairment could not be described as having a "substantial" adverse effect on her mobility. She readily walked to and from work (which took her about 10 minutes), and climbed the three flights of stairs leading to her office, without often finding it hard to breathe. When she did have a problem, it did not prevent her from answering the telephone or attending to her other duties. And out of the numerous occasions on which she had been off sick in the previous two years, only two were caused by her asthma and nine were owing to migraines.

In Toogood, the employer believed that a nurse was unfit for the job for which she had applied because of her past mental impairments (bulimia and depression). An industrial tribunal chair considered that those had a "substantial" adverse effect on her ability to concentrate and perception of the risk of physical danger, but the tribunal members both took the opposite view. They noted that the applicant had managed to hold down a nursing job elsewhere over a lengthy period, and that her sickness absences had not been too inordinate.

Long-term effects

Paragraph 2(1)(b) of Schedule 1 to the DDA provides that the effect of an impairment is "long term" if "the period for which it lasts is likely to be at least 12 months". Paragraph B7 of the Guidance says: "It is likely that an event will happen if it is more probable than not that it will happen." Paragraph B8 adds: "In assessing the likelihood of an effect lasting for any period, account should be taken of the total period for which the effect exists. This includes any time before the discriminatory behaviour occurred as well as time afterwards ..."

In Clark v Novacold Ltd, an industrial tribunal said the test of "likelihood" must be a test determined at the time of the alleged act of discrimination. At the time an assistant supervisor's employer decided to dismiss him, there was no medical evidence available to the employer on the likelihood of the effect of his impairment continuing. But the probability was that it would go on for longer than 12 months. The employee's symptoms had lasted for five months and were showing no signs of improvement.

In Mansfield , the tribunal required further medical evidence before concluding that the effect of the employee's impairment was long term. It therefore adjourned the hearing of the complaint. When the hearing resumed, the symptoms had already lasted 11 months and the employer had obtained a medical report from a consultant rheumatologist who thought that they would last at least another month. Since the severity of the symptoms fluctuated, the tribunal also had in mind para. 2(2) of Schedule 1 to the DDA. That says: "Where an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if the effect is likely to recur."

Effects of treatment

Paragraph 6 of Schedule 1 to the DDA provides that a visual impairment which is correctable by glasses or contact lenses is deemed to have the effect remaining while either of those are being worn, but that any other impairment which is being treated or corrected is deemed to have the effect it would have without the treatment or correction in question (such as the taking of prescribed medication and the use of a prosthesis or hearing aid).

In Kirker v British Sugar plc, an industrial tribunal found that a chemist's visual impairment had a substantial adverse effect on his eyesight even when he was wearing glasses. He still could not see well enough to drive, for example. He was also eligible for full blind registration, which meant that his level of corrected vision was below that considered necessary to perform any work for which eyesight is essential.

In Calvert v Jewelglen Ltd, a care assistant acknowledged that, "but for the medication" which had been prescribed for him, he would suffer symptoms of epilepsy which could involve fits and blackouts. An industrial tribunal found that he had a disability taking into account para. C20 of the Guidance, which says it would be reasonable to regard intermittent loss of consciousness and associated confused behaviour as having a substantial adverse effect on a person's ability to concentrate.

LESS FAVOURABLE TREATMENT

Section 5(1) of the DDA provides:

... an employer discriminates against a disabled person if -

(a)for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply; and

(b)he cannot show that the treatment in question is justified.

In O'Neill, the EAT was of the clear view that a complaint of s.5(1) discrimination was one of direct discrimination. The addition of a possible defence of justification did not make it any less so. In Reedman v Fresh Connection Ltd, an industrial tribunal reminded itself that there was no need for any ill intention or improper motive to be attributed to the employer, but that there had to be a causal connection between the less favourable treatment and the disability.

The issue for the EAT in O'Neill was what, looking at causation and putting matters of motive and the like aside, was connoted by the word "reason" in s.5(1)(a). It seemed to the EAT that that must involve a knowledge of the matter that is material; and what is material to discrimination on the ground of disability is disability, and not merely one or other equivocal symptom. Accordingly, the EAT held that knowledge of the disability in question, "or at least the material features of it as set out in Schedule 1" to the DDA, is relevant in applying s.5(1)(a).

In Holmes v Whittingham & Porter Ltd, an industrial tribunal said one has to interpret s.5(1)(a) "in a broad way" because the DDA had been brought in to give much wider protection to disabled people than the "green card" scheme under the Disabled Persons (Employment) Act 1944 which it abolished.

Reason for treatment

An employer does not discriminate against a disabled person if it can show that the treatment in question is justified (see below ), or that the reason for the treatment does not relate to the disabled person's disability. In Hanlon v University of Huddersfield, for example, a disabled employee was suspended because he refused to perform a contractual duty which he was fit enough to, and could safely, carry out. His reason for refusing was resentment at his failure to get a promotion which he thought he deserved.

In Daniels v Boston Borough Council, similarly, a disabled candidate for a clerk of works job did not get the job because the successful, non-disabled candidate's interview scores were higher overall than his. Although the disabled candidate was better qualified and his work experience was more extensive, he was less motivated and showed himself to be a poor communicator. He was also not up to date with the latest health and safety regulations, a thorough knowledge of which was an essential requirement for the job. The questions asked of both candidates were relevant, and both candidates were fairly assessed.

In Clark, the reasons for the employee's dismissal were his continued absence from work and, therefore, his inability to do his job. In the tribunal's view, however, those reasons did relate to his disability (soft tissue injury to his spine). In Mansfield, similarly, the employee's persistent absenteeism and inability to carry out heavy lifting, for which she was dismissed, related to her disability (degenerative disc disease of the lumbar spine).

In Terry v Sheldon School, the reason for a laboratory technician's dismissal was the totality of her absences from work. Those were mainly owing to two medical conditions, namely CFS and a separate back condition. An industrial tribunal found that only the former was a disability. It also found that the employee was not treated less favourably for a reason which related to her disability since that did not account for all of her absences. It was "a part factor being causative of some absences".

In O'Neill, the decision to dismiss the employee was also related to her absences: she was a new employee in a small, hard-pressed team, and her absences were having an adverse impact on the operation of that team. But the decision was not related to the fact that the employee was absent with a disability, because the employer was unaware of that. She never mentioned her disability (CFS), and the employer was not put on notice that she had a serious illness.

In Cox v Post Office, an industrial tribunal found that a postman who was dismissed because of his unsatisfactory attendance record was dismissed for a reason related to his disability (asthma). He had reached the stage in his employer's attendance procedure at which consideration could be given to dismissing him because his asthma-related absences had not been discounted. But for those absences being treated like any other absences, he would not have been dismissed. He would only have been at the first (informal warning) stage of the 1procedure.

In Reedman, the tribunal said that the employer must explain its actions once the complainant has shown that he or she is a "disabled person" and was prima facie treated less favourably than others. If no explanation is then put forward, or if the tribunal considers the explanation to be inadequate or unsatisfactory, it will be legitimate for the tribunal to infer that the less favourable treatment related to the complainant's disability (see also Daniels and Hanlon to the same effect).

In Saddington v Planning Inspectorate, a registered disabled civil servant was not given his "ticket" for promotion to the next grade when others before the same promotion board were. That pointed to the possibility that his less favourable treatment was for a reason related to his disability, namely his attendance record, and an industrial tribunal looked to his employer for an explanation. This related to the civil servant's personality, and the tribunal considered it to be satisfactory. His absences and poor time-keeping were well in the past, and each member of the promotion board maintained consistently that they were not influenced against him by his attendance record. Their views were a genuine and credible assessment of his performance at interview.

Disabled person's comparator

In O'Neill, the EAT reflected on the question how, in a case of s.5(1) discrimination, "an employer can be held to have treated a disabled employee, for a reason related to that disabled employee's disability, less favourably than in comparable circumstances he would treat an otherwise comparable employee, without knowing of the fact of the disability" (our emphasis).

In Clark, the tribunal compared the employee's treatment with that of a non-disabled, long-term sick employee who had been absent from work for as long as he had and who, like him, was unlikely to return to work in the foreseeable future. The tribunal said it could not compare the employee's treatment with that of an employee who was not only not disabled but also at work and able to do his or her job. His or her circumstances other than the disability had to be similar.

In Mansfield, by contrast, the tribunal said: "Dismissal is less favourable treatment compared to another person who is not dismissed. In our view, the comparison must be with a person who is not disabled and, therefore, is not off sick with a bad back. If [the employee] had not been off sick with her bad back she would not have been dismissed ... The comparison is not with a person who is not disabled but is nevertheless off sick with a bad back."

In Cox, the appropriate comparator, compared with whom the employee was less favourably treated for a reason related to his asthma, was an employee who was not an asthmatic but who had the same attendance record as the employee discounting his asthma-related absences. In Howden, the tribunal found that the employer treated the employee less favourably than it would have treated someone who did not suffer from his abdominal pain because it dismissed him for his sickness absence record in circumstances where it would have warned an employee who had "absented himself frivolously".

Paragraph 4.3 of the Code of Practice says "an employer might be discriminating by treating a person with a mental illness less favourably than he treats or would treat a physically disabled person." In Lang, in the absence of any direct evidence as to the reason for the employee's dismissal, the tribunal inferred that she was dismissed because she had submitted a sick note which gave "psychosis" as the reason for her absence. That word was understood to mean a serious mental disorder. The tribunal also inferred that the employer would not have dismissed the employee had the sick note given a "physical illness" as the reason for her absence.

Justified treatment

Section 5(3) of the DDA provides that, for the purposes of s.5(1) (see above ), "treatment is justified if, but only if, the reason for it is both material to the circumstances of the particular case and substantial."

In Toogood, the tribunal said "material" must mean important, essential or relevant in the circumstances of the case and "substantial" must mean something more than minor or trivial. Further, the justification must be based on hard evidence in relation to the particular case and not be based merely on assumptions or stereotypical thought. According to the tribunal in Cox, the justification has to be particular to the complainant and not general, although it may be that general observations have relevance to him or her.

In Morse v Wiltshire County Council , the EAT took the view that, in deciding whether or not the employer has shown that the treatment in question is justified, the industrial tribunal must apply an "objective test". The tribunal must ask whether the treatment was in fact objectively justified, and whether the reason for it was in fact material to the circumstances of the particular case and in fact substantial. It is not sufficient for the tribunal simply to ask if that reason appeared material and substantial to the employer. The tribunal must scrutinise the reason put forward by the employer and reach its own decision on what was objectively justified, and material and substantial.

Therefore, the EAT could not accept that, once the employer has advanced an explanation for its conduct, the tribunal can only consider whether that explanation is reasonably capable of being material and substantial. Nor is it sufficient if the tribunal judges that a reasonable employer could have acted as the employer did. In Terry, similarly, the tribunal accepted that "justification" within the meaning of the DDA is stricter than, and cannot be equated with, "reasonableness" under s.98(4) of the Employment Rights Act 1996. And in Holmes, the tribunal said justification under the DDA "has nothing to do with the employer being reasonable. It is a test which is far more severe than requiring the employer simply to act reasonably."

The tribunal added: "... [the DDA] is not like other discrimination legislation. It is not like sex discrimination or race discrimination where the purpose is to provide equality to all - male, female, black or white or of whatever ethnicity - but is to protect disabled persons ... the requirements of [the DDA] are different from what has been required of employers before ... they just have to take more steps so that employees who are disabled persons are protected."

In Smith v Carpets International UK plc, the suspension of an epileptic warehouse operative on full pay until his epilepsy became "controlled" was justified on health and safety grounds. The company doctor considered that the employee, who had recently had a number of fits at work, was an "uncontrolled" epileptic. He therefore concluded that it was dangerous for him to work in the warehouse, where there was a significant amount of heavy machinery and fork-lift truck activity.

In Reilly v EXI Ltd, similarly, the dismissal of an epileptic telephone exchange installer was also justified by safety considerations. He had had a fit at work; the company doctor had advised that there was no guarantee that this would not happen again, no matter how good the employee was about taking his medication; and the employer did not accept that the employee would always have sufficient warning of the onset of a fit to enable him, if necessary, to make himself and his workmates safe.

In York v D-Drill (Master Drillers) Ltd, an epileptic diamond driller had a blackout on the way to do a job. Four months later, he was still off work and his neurologist was of the opinion that he could not return to work in the foreseeable future. The employer did not want to make a final decision about his future, but came under pressure from him to do so at a meeting held at his request. The only decision that it could make at that time, in the light of the available medical evidence, was to dismiss him. An industrial tribunal was satisfied that the dismissal was justified by the employee's insistence on a final decision at the meeting.

In Clatworthy v Unum Ltd, the dismissal of a registered disabled claims assessor was justified by the fact that, whilst the employer's business could and did tolerate a higher level of absenteeism from him than from a non-disabled person, it could not do so to the extent anticipated in his case. The company doctor, who had reported that his condition had deteriorated, anticipated that he would be needing prolonged periods of absence from work. Consequently, his training would lag behind that of his fellow team members, who would also have to cover for him, thereby adversely affecting service standards.

In Fozard v Greater Manchester Police Authority, an applicant was not shortlisted for a word processor operator's job because she was adjudged to lack one of the essential requirements for the job, namely the ability to produce accurate written work. The basis of that judgment was the applicant's written application form, which contained a number of spelling mistakes and careless errors. An industrial tribunal decided that, if the applicant's failure to spell certain words correctly on the form related to her disability (congenital myotonic dystrophy), the employer's treatment of her was justified.

The tribunal found that the employer was reasonably looking for accuracy in written work, because the job involved typing, and filling in the application form was a fair test of accuracy of the sort that the employer was looking for. The employer's requirement for the completion and submission of a written job application was a reasonable one for a job involving clerical skills and the written word, and the employer needed to have a certain level of literacy for that reason. The reason for the requirement was therefore, in the tribunal's view, material and substantial.

Unjustified treatment

In McLauchlan v Fife Healthcare NHS Trust, an employer withdrew a conditional offer of employment which it had made to an applicant for a health visitor's post who had bipolar affective disorder. The offer was subject to medical clearance, and the doctor who examined the applicant declared her unfit for the post because she suffered from frequent mood swings and her moods continued to fluctuate. Another doctor then reviewed that decision, and upheld it for the same reasons. An industrial tribunal was satisfied that he thereby relied on the applicant's disability. He therefore treated her less favourably than he would have treated someone not subject to her disability.

The tribunal also decided that the employer could not show that the applicant's treatment was justified because, although the reason for it was "substantial", that reason was not "material to the circumstances of the particular case". Those circumstances included not only the applicant's disability but also its impact on her ability to do the work in question. The two doctors concerned had made no real attempt to consider, by reference to the post which was offered to the applicant, what practical effect (if any) her disability would have on her ability to do the job. Both doctors in effect assumed that a person suffering from bipolar affective disorder, who has been and still is subject to mood swings, is incapable of working as a health visitor. They made no effort to enquire further about the applicant's mood swings, how she coped with them and what impact they might have on her work.

In Lang, similarly, there was no evidence that the employer considered the possible consequences of a further protracted absence of the employee and how it might cope with that before dismissing her. The tribunal found it remarkable that the employer should have acted as peremptorily as it did. Even if it had in mind that the employee's prospective further absence meant that it could no longer employ her, there was no pressing need for it to deal with the matter instantly. She had been signed off for just a month, and had barely started on her second year's entitlement to sick pay. The employer also had no reasonable basis for assuming that the employee's mental condition was as serious as it imagined.

In Buxton v Equinox Design Ltd, an employee who had multiple sclerosis (MS) was employed as an exhibition craftsman until he encountered difficulty in the more physical aspects of his work. This involved creating exhibition stands in a workshop and erecting them at venues. For the final 18 months of his employment, the employee was employed as a joiner in the workshop. This was a post with lighter duties which had been created especially for him. An industrial tribunal was satisfied that the reason for the employee's dismissal was "material to the circumstances of the particular case": he was no longer able to work on ladders and needed help with heavy lifting.

The tribunal was not satisfied, however, that that reason was "substantial", because the only evidence in relation to it was anecdotal. Although the employee's medical reports raised concerns about his ability to carry on working, they also stated that he could continue in the post created for him with the support of colleagues. However, the employer decided to dismiss the employee on the basis of its concerns, stemming from a minor accident which he had at work, about his safety and capability. It did not carry out a risk assessment, as suggested by the Health and Safety Executive's medical advisory service, and nor did it measure the employee's capability objectively.

In Calvert, similarly, the dismissal of an epileptic care assistant who worked the night shift at a nursing home was not justified by the night sister's concerns that, in view of the amount of medication he was taking, he was likely to pose a danger to the home's elderly residents. Those concerns were not properly investigated through the appropriate managerial channels, and nor did the home's proprietor discuss them with the employee before dismissing him. The proprietor also failed to ask either the employee's GP, or the matron who had recruited him, about his medical condition, prognosis, medication or suitability for his job. They both knew that, by virtue of the medication which had been prescribed for him, the employee had not had a fit for 18 years.

In Mansfield, the employer also took no steps to consider the employee's medical condition in any detail before it dismissed her. All that it had were her sick notes. It did not obtain any medical opinion or prognosis, and nor did it discuss the employee's medical condition with her. In the tribunal's view, therefore, the dismissal could not be justified because the reasons for it were not "substantial".

In Sandy v Hampshire Constabulary, the withdrawal of a conditional offer of permanent employment as a station enquiry officer was not justified by medical advice that, because the applicant had a back condition, he was likely to need to take an above average number of days' sick leave. That advice was arbitrary and speculative, since it was given without reference to the applicant's sickness absence record and without the benefit of examining or consulting him. In fact, the applicant's disability had not affected his ability to do the work in question for the past 13½ months. Nor had it caused any of his five days' absence from work during that period.

In Holmes, the tribunal found that the dismissal of an epileptic labourer/record-keeper, who worked mostly in a forge, was not justified by advice from a GP that, because he had collapsed in his office, he was incapable of working safely or at all in the forge. He had had epilepsy for the whole of his employment of some 31 years with the employer and had never collapsed before. And the employer should have taken further advice from specialists in occupational health and in epilepsy about whether, and if so how, it could accommodate the effects of the employee's impairment and what his prognosis was.

In Forder v Southern Water Services Ltd, an industrial tribunal found that the dismissal of a disabled employee was not justified because it arose out of a change in the nature of his job which was introduced by the employer. And in Clark, the tribunal said that, if it had made a finding of less favourable treatment, the employer could not have shown that the employee's dismissal was justified because it could have kept him on its books at no cost.

FAILURE TO MAKE REASONABLE ADJUSTMENTS

Section 5(2) of the DDA provides:

... an employer also discriminates against a disabled person if -

(a)he fails to comply with a section 6 duty imposed on him in relation to the disabled person; and

(b)he cannot show that his failure to comply with that duty is justified.

Section 6 begins:

(1)Where -

(a)any arrangements made by or on behalf of an employer, or

(b)any physical feature of premises occupied by the employer,

place the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the arrangements or feature having that effect.

(2) Subsection (1)(a) applies only in relation to -

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded.

In Morse, the EAT held that an industrial tribunal must go through a number of sequential steps when dealing with a complaint of "reasonable adjustment" discrimination under s.5(2) (see the above box). The EAT also noted that s.6(1) applies only in the circumstances set out in s.6(2) and that, although para. 6.21 of the Code of Practice clearly assumes that s.6(1) applies to dismissal, there is no express mention of dismissal in s.6(2). Despite that, the EAT held that a s.6(1) duty does arise where a "disabled person" is dismissed. In the EAT's view, the words in s.6(2)(b) "any ... arrangements on which employment ... is ... afforded" were wide enough to cover arrangements in relation to whether employment continues or is terminated. In Cox, the tribunal found that the employer's attendance procedure constituted a term on which employment was afforded within s.6(2)(b).

Employer's lack of knowledge

Section 6(6) of the DDA provides that an employer is not under any duty to make a reasonable adjustment if it does not know, and could not reasonably be expected to know, that a disabled person has a disability which is likely to put him or her at a substantial disadvantage compared with non-disabled people.

In Reedman, an employer did not know that an employee was registered disabled or had dyslexia. He never showed the employer his certificate of registration or "green card", which described his disability as "spasmodic flat foot, varicose heels and painful feet", and never disclosed his dyslexia. The employer did know that he occasionally wore boots, but it could not reasonably be expected to know of their medical significance from their outward appearance alone. There was also no evidence of any lack of mobility apparent to the employer. So far as the dyslexia was concerned, the only thing which would have given the employer the remotest clue that this problem existed was one incident of confusion over orders, when the employee had simply said that he could not read the forms.

In Hanlon, a workshop technician's employer knew that he had a gammy leg. It also knew that he needed, at times, to be able to move around and, at other times, to be able to sit and rest his leg. It therefore provided him with a mix of audio-visual work, which allowed him to be mobile, and sedentary work. However, an industrial tribunal found that the employer did not know, and could not reasonably be expected to know, that the employee's condition was degenerative, or that he also needed privacy so that he could remove his trousers and carry out personal physiotherapy.

At no stage did the employee inform anyone that his condition had deteriorated. He also never mentioned any need for privacy, or that the facilities in the workshop were insufficient for his needs. And the man who had shared an office with him for five years had never seen him take his trousers off in order to massage his leg, or do anything more than sit and rub his leg on days when it was particularly bad. On other days, he appeared to suffer no discomfort from his leg at all. The EAT saw no error of law in the tribunal's approach. It was, in the end, all a question of fact for the tribunal, which had preferred the evidence of the employer's witnesses to that of the employee wherever there was a conflict.

Paragraph 5.19 of the Code of Practice says: "It is only if the employer knows or could be reasonably expected to know that a particular disabled person is, or may be, applying [for a job] and is likely to be substantially disadvantaged by the employer's premises or arrangements, that the employer may have to make changes [to the way the interview is carried out]." In Ridout v T C Group, an employer knew that a candidate for a post had epilepsy before her interview took place. But she did not state on the application form that she had the rare form of epilepsy known as photosensitive epilepsy. An industrial tribunal found that the employer could not, therefore, reasonably have been expected to know that the fluorescent lighting in the interview room might place her at a disadvantage until she walked in and said so.

Nor did the tribunal consider that the employer could be criticised for taking the candidate's remark as an explanation for her wearing sunglasses around her neck in February at 5 pm, and possibly having to put them on if the occasion arose, rather than as a suggestion that the room itself was unsuitable. She could and should have said rather more than she did. In any event, the tribunal also found that the lighting did not put the candidate at a "substantial" disadvantage in comparison with non-disabled candidates for the job. If it had done, she would have put her sunglasses on.

The tribunal said: "The DDA is phrased in such a way that the employer must react in an appropriate way to that which it knows and ... could reasonably be expected to know. That obviously places ... an onus on the employer to make reasonable enquiry based upon information given to it. It does not place on the employer the absolute onus to make every enquiry possible even where there is no, or very little, basis for making such enquiry." Paragraph 4.57 of the Code of Practice requires an employer to do it could reasonably be expected to do" to find out if a person has a disability which is likely to place him or her at a substantial disadvantage. But para. 4.61 states that, if a disabled person expects an employer to make a reasonable adjustment, he or she will need to provide it with "sufficient information" to do so.

In O'Neill, the EAT said the kind of steps an employer could reasonably be expected to take to inform itself would vary according to the particular needs of each case. In this case, the tribunal was entitled to find that the employer, on its limited knowledge of the employee over three months, could not reasonably have been expected to know that she had a disability, or that there were matters that ought properly to have put it on enquiry. It was aware that she had a "viral illness", to which it understandably attributed her hospital visits and which could incorporate a variety of relatively common afflictions such as a bad dose of flu.

In Reilly, the tribunal did not find any s.6 duty to be imposed on an employer in relation to an epileptic employee who had assured it, when interviewed for the job, that his epilepsy was "controlled".

Reasonableness of adjustment

Section 6(3) of the DDA lists "examples of steps which an employer may have to take in relation to a disabled person" in order to comply with s.6(1). "The purpose of s.6(3)", said the EAT in Morse, "is to focus the mind of the employer on possible steps which it might take in compliance with its s.6(1) duty, and to focus the mind of the tribunal when considering whether an employer has failed to comply with a s.6 duty." According to the EAT in O'Neill, the nature and extent of the adjustment to be made will vary according to the particular needs of each case.

Section 6(4) of the DDA provides that, in determining whether or not it is "reasonable" for an employer to have to take a particular step so as to comply with s.6(1), "regard shall be had, in particular, to:

(a) the extent to which taking the step would prevent the effect in question;

(b)the extent to which it is practicable for the employer to take the step;

(c) the financial and other costs which would be incurred by the employer in taking the step, and the extent to which taking it would disrupt any of his activities;

(d) the extent of the employer's financial and other resources;

(e) the availability to the employer of financial or other assistance with respect to taking the step."

In Morse, the EAT said that, if the employer showed that no reasonable adjustment would have avoided the employee's dismissal, it was arguable that there was no failure by the employer to comply with a s.6(1) duty. However, there was no indication that the tribunal made any real enquiry into the steps which the employer might have taken, listed in s.6(3) or otherwise, to enable the employee to have been kept on, or into the additional expense, if any, which was likely to have been caused by any such steps before "balancing the effect of any such expense against the effect of dismissal on [the employee]"; and before judging whether or not the employer had failed to comply with a s.6(1) duty.

The tribunal did say that any adjustment it could speculate on would inevitably have involved the employer in considerable expense, and produced a situation which the employer could not afford. But the EAT said: "To say, in effect, that it is for the employer and not the industrial tribunal to say what it can and cannot afford to do would be greatly to limit the aims of [the DDA]. The employer is given sufficient economic protection by the provisions of s.6(4)." The tribunal had to apply an "objective test" and ask, for instance, if any of the steps in s.6(3) were reasonably available in the light of the actual situation so far as the factors in s.6(4) were concerned.

In Cox, the tribunal found that it would have been reasonable for the employer to have reviewed the employee's entire attendance record, including the reasons for his previous absences, and then to discount his asthma-related absences. That step would have prevented his dismissal; it was eminently practicable; and, given the employer's size, any cost it incurred or disruption to its activities would have been insignificant in relation to its financial resources. In Tarling, it was reasonable for the employer to have bought the employee a chair of a particular design. It had received expert advice that the chair, which would have cost it no more than £200 with grant aid, might have helped her and so prevented her dismissal.

In Forder, the arrangements on which an employer required a fitter suffering from emphysema to move from one site to another placed him at a substantial disadvantage. The employer knew that he had difficulty climbing vertical ladders but, whereas at the old site he had been required to climb a vertical ladder only occasionally, at the new site he had to do that two or three times a day. The tribunal found that it was reasonable for the employer, in view of its size and resources, to have kept the employee working where he was, or to have allocated some of his duties to another person.

In Williams v Channel 5 Engineering Services Ltd, part of the training to be a television re-tuner, which involved watching a video with a voice-over but no subtitles, put a deaf employee at a substantial disadvantage. An industrial tribunal found that it would have been reasonable for the trainer to have given the deaf employee one-to-one training instead, and for the employer to have acquired a portable text telephone or pager for him when it embarked on its re-tuning programme.

The tribunal said: "The whole tenor of the [DDA] read with the Code of Practice is that employers should avoid discrimination and plan ahead by considering the needs of possible future disabled employees" (see para. 3.4 of the Code). In this case, there was a failure to put in place from the start a procedure to ensure that either the employer or the trainer were aware of the potential needs of disabled applicants. There was no provision in the application form for an applicant to state whether or not he or she was disabled and, if so, in what way.

In Fozard, by contrast, the form that the applicant was required to complete stated: "We are endeavouring to improve access and facilities. With this in mind, do you have any special needs which may require special provision?" The applicant's reply to that question was an unqualified "no". The tribunal concluded that the question was the proper and reasonably practicable means whereby the employer had attempted to ascertain if it should make some adjustment in relation to the applicant. She had also indicated on the application form that she had a disability without specifying what this was, but it was neither reasonable nor desirable for the employer to have taken any other step, such as interviewing the applicant about her disability.

In Matty v Tesco Stores Ltd, it was not reasonable for an employer to have had to take any particular step in order to comply with s.6(1). In that case, the temperature and heights at which a fitter employed at a depot had to work put a diabetic, who applied for a fitter's job there, at a substantial disadvantage. He would have been obliged to spend several hours a week working in a cold store maintained at -25⁰ C, and to repair damage to racking at heights approaching 40 feet at least once a day. As a diabetic, the risk of his sustaining injury from working in or on the freezer was increased.

However, no adjustment to the premises was reasonably practicable: the freezer could not be run at a higher temperature, and the racking could not be lowered to a height at which it would be safe to allow the applicant to work. Further, the risk of his sustaining injury from working in the freezer could not be reduced by supplying or modifying equipment: staff who were required to work in the freezer were already supplied with the best protective clothing available. There was also no way in which the nature of the job could be changed: fitters simply had to respond to emergencies and carry out repairs immediately. It was also too costly to have two fitters instead of one on duty for each shift, thereby allowing the applicant to work only in ambient temperatures and on the ground. Altering his hours would not have helped either.

In York, similarly, the tribunal could not find any failure by the employer to comply with a s.6(1) duty in relation to the employee. He worked in places over which the employer had no control. There was no evidence to suggest how some of his duties could have been allocated to others without leaving him with nothing to do, and a transfer was not an option. The dangerous machinery which he was required to operate was already fitted with a "dead man's switch", although that would not have benefited him if he had had a fit while working on a ladder, on scaffolding or down a hole. Providing supervision would not have helped either.

In Smith, taking into account questions of practicability and financial cost, it was not reasonable to expect the employer to have made what would have amounted to a total change in the way in which it carried out its work. It could not reasonably be expected to have made arrangements which removed fork-lift trucks from the warehouse, for example. It was sufficient that the employer had offered to transfer the employee to the only existing vacancy which he could safely have filled.

In Terry, the employer had complied with its s.6(1) duty insofar as it had reduced the employee's hours; agreed a timescale for her to return to full-time working; given her a choice of tasks to perform; allowed her to leave work early on several occasions; and acquired trolleys to reduce the amount of carrying that her job entailed. However, there was no alternative employment of a less strenuous nature which could have been offered to her. The employer would have had to create a job whose functions were already being adequately carried out by someone else.

Justified failure

Section 5(4) of the DDA provides that, for the purposes of s.5(2), failure to comply with a s.6(1) duty is "justified" if, but only if, the reason for the failure is "both material to the circumstances of the particular case and substantial" (see above ).

COMPENSATION ORDERS

Section 8(2) of the DDA provides:

Where an industrial tribunal finds that a complaint presented to it under [s.8(1)] is well-founded, it shall take such of the following steps as it considers just and equitable -

(a) ...

(b) ordering the respondent to pay compensation to the complainant;

(c) ...

Section 8(3) says:

Where a tribunal orders compensation under [s.8(2)(b)], the amount of the compensation shall be calculated by applying the principles applicable to the calculation of damages in claims in tort or (in Scotland) in reparation for breach of statutory duty.

By far the most compensation that has been ordered by an industrial tribunal to date was the £103,146 awarded to the complainant in Kirker. That sum included past loss of earnings and injury to feelings plus interest, estimated future loss of earnings (which formed the bulk of the compensation) less disability living allowance, loss of enhancement of accrued pension rights and loss of the chance of being able to take ill-health early retirement.

The 40-year-old complainant had applied for 45 jobs since he was selected for redundancy because of his poor eyesight. But he had had only one interview, at which he failed the written test. That experience, which was backed up by a recent RNIB report, was relevant to the tribunal's consideration of his prospect of securing other work. It assumed that he would not find another job for the remaining 15 years of his working life. But the tribunal also acknowledged the risk that, had the complainant remained employed by the employer during that period, his eyesight would have deteriorated to the extent that he could no longer perform his duties. The tribunal assessed that risk for the next 15 years at 20%.

Injury to feelings

Section 8(4) of the DDA provides that "compensation in respect of discrimination in a way which is unlawful under [the DDA's employment provisions] may include compensation for injury to feelings whether or not it includes compensation under any other head."

In Holmes, the tribunal awarded £4,250 for injury to feelings. It took into account that the employee had worked for the same employer for 31 years and that, at the age of 59, it would be very difficult for him to get another job. He had also clearly reached the depths of despair. His dismissal had caused his mental condition to deteriorate to the extent that he had made a 999 call and ended up in hospital. He had, however, made a reasonable recovery after three months.

In Kirker, the tribunal thought that the sum of £3,500 would adequately reflect the injury to the employee's feelings. It took into account that his dismissal had come as a considerable blow and substantially undermined his confidence, which had not been entirely restored by the tribunal's decision to uphold his complaint. He had also lost congenial work, and would find it very difficult to get work to replace it.

In Calvert, the tribunal was satisfied that the employee had been "most shocked, affronted and hurt" by his "demeaning and degrading" treatment, and that the injury to his feelings was "substantial". He had been "devastated" by his dismissal, which was "a severe set-back". In awarding him £3,500 for his hurt feelings, the tribunal also took into account that he had taken on major financial commitments on the basis that his employment would be permanent.

That award of £3,500 included £1,000 aggravated damages "by reason of the manner in which [the employee] was handled and the way in which the dismissal was carried out". He went to work as normal one evening only to be told that he would not be needed that night, and that he should make an appointment to see the proprietor. The next morning he telephoned the proprietor, who did not see him until four days later. He was also told that he would not be paid for that period. At their meeting, the proprietor tried to fob the employee off with an entirely meaningless promise to circulate his CV amongst contacts who might offer him lower-paid clerical work. He had already said that he was no good at adding up, and that he could not afford any drop in income.

In Mansfield, the tribunal thought that awards of compensation for injury to feelings in disability discrimination cases should be comparable to those in sex or race discrimination cases. Further, where the discrimination was coupled with humiliation the award should be much higher. Here, the complainant was understandably upset at losing her job because of her disability but this was not the most serious of cases. The tribunal thought that the appropriate award was £1,000.

In Lang, the tribunal also concluded that an award of compensation for injury to feelings at the lower end of the scale would be appropriate. There was no suggestion that the complainant suffered substantial injury to her feelings and she was much happier and more at ease with herself in her new job, which started within two months of her dismissal. Accordingly, the tribunal decided to award her £1,000.

In Howden, the tribunal also awarded the complainant £1,000 for injury to feelings. It took into account that he had suffered a loss of self-confidence as result of his dismissal and felt depressed, for which he was prescribed Prozac. In McLauchlan, the tribunal took into account that such injury as was caused to the complainant's feelings was relatively short-lived, since the doctor who upheld the decision that she was unfit for the post in question changed his mind three months later. She had also succeeded in securing an identical post elsewhere relatively quickly, which she acknowledged had restored her confidence. Again, the tribunal decided that an award of £1,000 would be appropriate.

¹ The Disability Discrimination (Meaning of Disability) Regulations 1996 (SI No.1455) and the Disability Discrimination (Employment) Regulations 1996 (SI No.1456).

² "Code of Practice for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability."

³ "Guidance on matters to be taken into account in determining questions relating to the definition of disability."

⁴ "Annual Report 1997" .

⁵ ACAS press release, 29.4.98.

⁶ "The Disability Discrimination Act 1995: the employment provisions and small employers - a review".

⁷ 3.12.97 Hansard (HC) col. 243.

⁸ s.7(8) of the DDA.

⁹ 23.3.98 Hansard (HC) col. 52.

¹⁰ 3.12.97 Hansard (HC) col. 242.

¹¹ 19.1.98 Hansard (HC) col. 441.

Disability discrimination update: main points to note

Exemption for small employers

The DDA's employment provisions do not apply to employers with fewer than 20 employees (s.7(1)). Almost a quarter of all disabled employees in the UK, and all disabled applicants for jobs with 95% of employers, are thereby not protected from discrimination by the DDA. However, the Secretary of State for Education and Employment is empowered to lower (but not to raise or remove) the threshold (s.7(2)), following a review of the exemption's effect (s.7(4)).

On 3 December 1997, the Department for Education and Employment published a consultation document⁶ concerning the effect of the exemption to date and possible options for change. The Government will consider carefully the responses to the document, which were sought by 2 March 1998, before deciding whether to lower the threshold or not and, if so, to what level⁷. Any change will be brought in before the end of this year⁸.

Dealing with allegations of "reasonable adjustment" discrimination

In Morse v Wiltshire County Council, the EAT held that an industrial tribunal must go through the following sequential steps when dealing with a complaint of "reasonable adjustment" discrimination under s.5(2) of the DDA:

Disability Rights Task Force

The Government's Disability Rights Task Force (DRTF) was set up on 3 December 1997 to consider how best to implement the Labour Party's manifesto commitment "to secure comprehensive, enforceable civil rights for disabled people". DRTF papers and minutes have been placed on the Internet for public access on web site www.disability.gov.uk and comments may be returned to the Task Force Secretariat⁹.

On 23 April 1998, the Government made available the DRTF's recommendations on the role and functions of a Disability Rights Commission. The DRTF is expected to provide a full report of its recommendations on wider issues by the end of July 1999¹⁰, and the Government will await those recommendations before considering what form of primary legislation may be necessary¹¹.

CASE LIST

Bakshi v Post Office 10.11.97 case no.2700827/97

Buxton v Equinox Design Ltd 6.10.97 case no.1802596/97

Calvert v Jewelglen Ltd 21.10.97 and 31.10.97 case no.2403989/97

Clark v Novacold Ltd 21.8.97 case no.1801661/97

Clatworthy v Unum Ltd 9.9.97 case no.2302662/97

Cook v Kitchen Range Foods Ltd 30.9.97 case no.1501064/97

Cox v Post Office 23.10.97 case no.1301162/97

Daniels v Boston Borough Council 21.1.98 case no.2601522/97

Foord v J A Johnston & Sons 5.9.97 case no.S/200300/97

Forder v Southern Water Services Ltd 29.12.97 case no.3101262/97

Foster v Hampshire Fire & Rescue Service 23.9.97 case no.3101562/97

Fozard v Greater Manchester Police Authority 12.6.97 case no.2401143/97

Hall v Barton Locker Co Ltd 5.3.98 EAT 158/98 and 14.11.97 case no.1300780/97

Hanlon v University of Huddersfield 27.4.98 EAT 166/98 and 22.12.97 case no.1802523/96

Holmes v Whittingham & Porter Ltd 8.10.97 case no.1802799/97

Howden v Capital Copiers (Edinburgh) Ltd 6.8.97 case no.S/400005/97

Kirker v British Sugar plc 5.12.97 and 9.1.98 case no.2601249/97

Lang v Redland Roofing Systems Ltd 30.10.97 case no.S/400788/97

McLauchlan v Fife Healthcare NHS Trust 23.2.98 case no.S/400655/97

Mansfield v Saunders 19.11.97 case no.1401315/97

Matty v Tesco Stores Ltd 31.10.97 case no.1901114/97

Meisel v Abbeygate Rest Homes Ltd 3.3.98 case no.1901963/97

Morse v Wiltshire County Council 1.5.98 EAT 1279/97

O'Neill v Symm & Co Ltd [1998] IRLR 233 and 11.6.97 case no.2700054/97

Quinlan v B&Q plc 4.3.98 EAT 1386/97 and 15.10.97 case no.23029597/97

Reedman v Fresh Connection Ltd 14.10.97 case no.2600538/97

Reilly v EXI Ltd 21.8.97 case no.S/400489/97

Ridout v T C Group 27.10.97 case no.2900464/97

Saddington v Planning Inspectorate 19.11.97 case no.1401294/97

Sandy v Hampshire Constabulary 17.9.97 case no.3101118/97

Smith v Carpets International UK plc 11.9.97 case no.1800507/97

Tarling v Wisdom Toothbrushes Ltd 24.6.97 case no.1500148/97

Terry v Sheldon School 9.3.98 case no.1401832/97

Toogood v Glan Clwyd Hospital Trust 24.3.98 case no.2900868/97

Williams v Channel 5 Engineering Services Ltd 29.10.97 case no.2302136/97

York v D-Drill (Master Drillers) Ltd 7.10.97 case no.2801765/97