Long-term sickness absence: case study on the legal ramifications of the Disability Discrimination Act 1995

Amanda Jones of Clyde & Co provides a case study on long-term sickness absence and the legal ramifications of the Disability Discrimination Act 1995.

Facts

Adam is employed as a hedge fund manager by Superior Hedge Funds Plc. He has been absent on the grounds of ill health for the last six months, and has supplied the company with certificates from his doctor certifying his absence on the grounds of 'depression'. The company is also aware that Adam has had a serious drinking problem in the past.

Adam's manager, Rick, is fed up with the situation and thinks that Adam simply needs to pull himself together and get back to work. Rick has asked Tina, the new HR assistant, to stop Adam's sick pay immediately and, in the event that this does not drive Adam back to work, he wants Adam to be sacked. Tina is concerned that Rick's requests might result in a breach of the Disability Discrimination Act 1995 but is not sure whether Adam is protected by the legislation.

Analysis

Is Adam's condition capable of amounting to a disability for the purposes of the Disability Discrimination Act 1995?

Under the Disability Discrimination Act 1995, a disability is defined as 'a physical or mental impairment which has a substantial and long-term adverse effect on [an individual's] ability to carry out normal day-to-day activities'.

There is no definition of 'mental impairment' in the Disability Discrimination Act 1995 but the guidance to the Act states that the term includes a wide range of impairments relating to mental functioning. The Act does, however, limit protection to those impairments resulting from, or consisting of, a mental illness that is 'clinically well recognised'. This means that the mental illness must be one that is recognised by a respected body of medical opinion. Where there is doubt as to whether an illness falls within this definition, it is advisable for the employer to ascertain whether the illness is included in the World Health Organisation International Classification of Diseases. In this case Adam's depression is a clinically well-recognised illness.

Employers should, however, note that the Disability Discrimination Act 2005, which is due to come into force between December 2005 and December 2006, will amend the definition of disability so that a mental illness will no longer need to be 'clinically well recognised' in order to count as a mental impairment.

Although addictions are expressly excluded from the definition of disability by virtue of the Disability Discrimination (Meaning of Disability) Regulations 1996, an illness arising out of an addiction is capable of being either a mental or a physical impairment for the purposes of the Disability Discrimination Act 1995. Hence, the company would be unlikely to succeed in an argument that because Adam's depression is a consequence of his alcoholism it is not, therefore, capable of being a mental impairment.

While Adam's condition is capable of amounting to a mental impairment, he would also need to show that the impairment has a substantial and long-term adverse effect on his day-to-day activities. 'Substantial' means more than minor or trivial and an impairment will generally be classified as 'long term' if it has lasted or is likely to last for more than 12 months. The condition may be judged to be long term even if the symptoms are not continuous, provided that they are likely to recur.

Finally, the impairment must adversely affect Adam's day-to-day activities. The Disability Discrimination Act 1995 states that the impairment must affect one of: mobility; manual dexterity; physical coordination; continence; the ability to lift, carry or otherwise move everyday objects; speech, hearing or eyesight; memory or the ability to concentrate, learn or understand; or the perception of the risk of physical danger.

How should Tina ascertain whether Adam is disabled for the purposes of the Disability Discrimination Act 1995?

In order for the company to form a view as to whether Adam may be disabled for the purposes of the Disability Discrimination Act 1995, it will be necessary for it to obtain a medical report from Adam's GP or consultant, the company's occupational health adviser, or possibly both. It should be noted, however, that while medical evidence will obviously play a key role in determining whether or not Adam is disabled, whether he is disabled under the Disability Discrimination Act 1995 remains a legal issue.

One way for Tina to proceed would be for her to ask Adam to attend an appointment with the company's occupational health adviser. Unless it has been agreed in the employment contract, the company cannot compel Adam to attend such a medical appointment, and any attempt to do so may amount to a repudiatory breach of contract. However, if Adam refused to attend a medical appointment the company would be entitled to act upon the information available to it at the time.

In addition, if the company wishes to contact Adam's GP or consultant for a report, it must be careful to observe the provisions of the Access to Medical Reports Act 1988. In the event that Adam refused to give his consent for the company to contact his GP or consultant for a report or requested that access to the report by the company be withheld, the company would be entitled to rely on the information available at the time.

When instructing the occupational health adviser, Tina should ask him or her to confirm a diagnosis, give a prognosis (stating when, if ever, Adam is likely to be able to return to work) and advise on any work activities that Adam may be capable of carrying out. Tina should also ask for advice on any reasonable adjustments to Adam's role that the company could make to assist his return to work and on the likelihood of a recurrence of the illness in future.

Facts

Adam agrees to attend an appointment with the company doctor. The company doctor produces a report stating that in his opinion he does not believe that Adam is seriously depressed and there is no reason why he could not return to work. Adam then sends the company a detailed report produced by his own psychiatrist, who supports the view that he has a mental impairment and is disabled.

Analysis

Which medical advice should Tina follow?

Any future dismissal could be held to be unfair and/or discriminatory if the company sought to rely solely on the opinion of its own occupational health adviser. Where an employer wishes to rely on one medical opinion in preference to another there must be good reasons for doing so, for example if its occupational health adviser has a greater awareness of the nature of the employee's job role and the risks that his or her condition would present in carrying out that role.

Where there is conflicting medical advice, the safest course of action is for the employer to obtain an independent third opinion. A failure to do so may mean that it has inadequate information upon which to base its decisions. The company should, therefore, instruct an independent joint expert in respect of Adam. The letter of instruction should be non-partisan and ask for an opinion as to diagnosis, prognosis, return to work possibilities, possible reasonable adjustments and likelihood of recurrence.

Facts

Tina decides to instruct a joint expert. The joint expert confirms that Adam is suffering from a serious mental impairment for the purposes of the Disability Discrimination Act 1995. The expert indicates that Adam will not be able to return to work unless a number of adjustments are made to his role, for example the implementation of a phased return, reduced hours and responsibilities, and time off to obtain counselling. Tina realises that the company will need some time to assess such matters and consider whether it can implement these adjustments. In the meantime, she decides to stop Adam's sick pay in order to keep Rick happy.

Analysis

Can the company lawfully stop Adam's sick pay?

In the recent case of Nottinghamshire County Council v Meikle [2004] IRLR 703 CA the Court of Appeal held that an employer's failure to adjust its sick pay policy to permit the payment of full pay to an employee could constitute discrimination under the Disability Discrimination Act 1995. Mrs Meikle, a disabled employee, requested that a number of adjustments be made to her working conditions. Her employer failed to make these adjustments and she went off sick as a result. The employer, in line with its contractual sick pay policy, reduced the employee's sick pay after a number of months. The Court of Appeal held that the employer had treated the employee less favourably on the grounds of her disability as it had failed in its duty to make the adjustments to her working conditions that might have made it possible for her to continue working.

The Disability Discrimination Act 1995 sets out examples of the kinds of steps that an employer may have to take in relation to a disabled employee. In Adam's case, the sorts of adjustments that may be relevant would include, but are not limited to:

The employer must then assess whether the adjustments are 'reasonable'. The Disability Discrimination Act 1995 states that, when making such an assessment, regard shall be had to:

Given that the joint expert has recommended a number of adjustments that should be made in order to assist Adam's return to work, the company would be advised not to stop Adam's sick pay until it has considered whether any reasonable adjustments to his role can be made and, where relevant, it has implemented these changes. The danger in stopping Adam's sick pay prior to any consideration of the adjustments is that the Company may be deemed to have treated Adam less favourably on the grounds of his disability.

The next topic of the week article will be the first in a series on recent TUPE developments and will be published on 6 June.

Amanda Jones is a solicitor at Clyde & Co (amanda.jones@clydeco.com)

Further information on Clyde & Co can be accessed at www.clydeco.com