Managing incapacity: disability discrimination

What is meant by physical and mental impairment?

Physical or mental impairments are not specifically defined under the Act.

Examples of physical impairment include multiple sclerosis and arthritis. Until recently, HIV without symptoms (ie, not full-blown AIDS) was not classified as a disability because HIV positive individuals were able to carry out normal day-to-day activities. However, the position will change once the Disability Discrimination Bill becomes law (probably in 2004) and those with the HIV virus will be brought within the ambit of the Act from the time of diagnosis.

Alcohol abuse is excluded from the Act. However, if liver failure from alcohol abuse meets the definition of disability above, the employee would be protected by the Act since it is irrelevant how the disability is caused.

Mental impairment is taken to mean those impairments resulting from or consisting of a clinically well-recognised mental illness. It is generally now understood that a mental illness as listed in the World Health Organisation's International Classification of Diseases would amount to a mental impairment under the Act. Examples of recognised mental illness which could lead to mental impairment include schizophrenia and manic depression.

Where the physical or mental impairment is being treated with medication or other measures, the condition will be assessed without the effect of the medication. So in the case of someone with diabetes, whether or not the effect is substantial is decided without taking into account any medication the employee is taking.

What is meant by long-term?

The effect of an impairment is long-term if it has lasted at least 12 months, or if it is likely to last at least that long, or is likely to last for the rest of the affected employee's life. Recurring conditions (eg, epilepsy) are considered long term even if they have ceased to have an effect on a person's ability to carry out normal day-to-day activities if the condition is likely to recur.

What is meant by day-to-day activities?

An impairment affects the ability to carry out normal day-to-day activities (not restricted to the workplace) only if it affects one of the following:

The relevant test is not to focus on what the individual can do but what they cannot do. It is not possible to argue that an employee is not disabled simply because the list of things they can do is longer than those they cannot.

This definition does not focus on the employee's ability to do his particular job, but on his physical or mental condition. Accordingly, whether a person's impairment makes it difficult for him to carry out his particular job is not conclusive of whether or not he has a disability under the DDA.

Too often employers act on the assumption that individuals have a disability without actually asking a qualified medical practitioner to study that definition and address whether or not someone has a disability. It is always fundamentally important to give the doctor a proper brief when asking for an analysis of an individual's condition and the prognosis going forward.

Obligation not to discriminate

Once a disability is established, you have two obligations:

An employer discriminates against a disabled person if, for a reason which relates to the disabled person's disability, it treats them less favourably than it treats or would treat others to whom that reason does not or would not apply, and the employer cannot show that such treatment is justified.

Justification

To establish the defence of justification, the employer must show that the reason for the treatment of the disabled person is both material to the circumstances of the particular case and substantial.

In a recent case, an insulin-dependent diabetic postman was removed from his driving duties because his employer believed that, based on medical evidence, there was a risk to safety. It was accepted that the postman had been less favourably treated because of his disability, but his employer argued that the treatment could be justified.

The tribunal decided that the safety risk was negligible, not material, and therefore the treatment could not be justified. However, the Court of Appeal decided that it was not for the tribunal to second guess the employer and to substitute its own findings. If the employer's actions were within the range of reasonable responses then this would constitute justification under the Act.

Treatment of a disabled person for a reason based on a general assumption about people with that particular condition, eg, an assumption that blind people cannot use computers would not be a material reason because it is not related to the particular circumstances of the person receiving the treatment.

The defence of justification does not operate in isolation. It must be viewed in the context of a legal duty to make reasonable adjustments to remove the disadvantages faced by a disabled person. For example, failure to employ a diabetic as a fitter at a distribution centre was accepted as being justified because the risk of injury to a diabetic employee in the low temperature environment could not be reduced by supplying or modifying equipment (the reasonable adjustment).

Duty to make reasonable adjustments

Discrimination may also occur by way of the employer's failure to comply with the duty to make adjustments. An employer is under a duty to take such steps as are reasonable to prevent any arrangements made by it or on its behalf, or any physical features of its premises, from placing a disabled applicant or employee at a substantial disadvantage compared to those applicants or employees who are not disabled.

To comply with the duty to make reasonable adjustments an employer may have to:

The duty to make reasonable adjustments is job-related. For example, you would be required to make access adjustments for a disabled employee, but you would not be required to provide transport to and from work for that employee. Also, a job applicant who required assistance in carrying out his toilet functions was not discriminated against when the employer refused to provide a personal carer to assist him with his toilet needs because such provision addressed his personal needs, but was not job-related. However, there is a duty on you to consider physical adjustments to enable access to the toilets.

Discrimination by victimisation

An employer discriminates against another person if it treats that person less favourably than it treats or would treat other persons whose circumstances are the same as that person's and does so by reason that that person has:

Knowledge of disability

It may not be necessary for you to know that you had a disability in order for a claim of disability discrimination to succeed. Before dismissing an employee or treating him in a less favourable way employers should pause to consider whether the reason for the treatment might relate to disability and may therefore give rise to a claim for disability discrimination.

What remedies can be awarded for a claim for disability discrimination?

Declaration

A declaration can be made as to the rights of the employee and the employer in relation to the matters to which the complaint relates.

Compensation

The employer can be ordered to pay compensation to the employee - the amount calculated on the same principles as damages in tort, ie, loss of earnings. Compensation may include an amount in respect of injury to feelings. Awards of £20,000-plus for injury to feelings, plus additional awards for aggravated damages, are not unusual in discrimination cases. There is no upper limit on the amount of compensation in a disability discrimination claim. The award may also include interest.

Recommendation

The tribunal may recommend that the employer take action, within a specified period, to obviate or reduce the adverse affect on the complainant of any matter to which the complaint relates. Failure to comply with such a recommendation, without reasonable justification, may lead to an increase in the amount of compensation to be paid, if such an increase is considered by the tribunal to be just and equitable.

Right to dismiss

As always, this area of law is infused with the requirement to act reasonably and although this is the area where most care needs to be taken, the Disability Discrimination Act will not stand in the way of dismissing somebody who is incapable of working. The duty to make reasonable adjustments does not require you to accept reduced performance and you do not need to be 'hands off' with those you suspect of having a disability.

DISABILITY DISCRIMINATION ACT

CASE STUDY

During the past nine months there has been a marked deterioration in her attendance levels. She has taken 21 days off sick intermittently. Ten days were on a Friday and three on a Monday. Her boss, Michael Marx, is furious.

The reasons for the absences, according to Sundae's self-certificates, are usually minor: backaches and pains; dizziness and general fatigue. Michael Marx has been liaising with the HR officer, Amanda Marble regarding a performance review to discuss Sundae's attendance. Marble wrote to Sundae on 18 November inviting her to attend a performance review meeting on 22 November. Sundae failed to turn up for the review meeting as she was off sick again.

After a further three days off sick, Sundae returned to work with a letter from her doctor stating that the cause of her absence was her ongoing problem of muscle fatigue and hearing loss. It turns out that Sundae has been to see her GP several times over the past year, but there has been no improvement in her condition.

Sundae meets with her boss Marx to request an alteration in her working hours from 9.00-5.30 to 10.30 to 4.30. She says that her muscle fatigue makes it difficult to stand for prolonged periods of time and getting into the office by 9:00 and leaving at 5:30 means that she does not get a seat on the train.

Consider the next steps in light of the Disability Discrimination Act.

MODEL ANSWER

Warning signs

First of all, it is important to identify the issues. Sundae has a high absence record of intermittent and sporadic sick days. Self-certificates state backache, dizziness and fatigue. The doctor's report states muscle fatigue and hearing loss. Sundae has requested changes to her working hours. Worldwide Insurers therefore needs to consider how this might be avoided.

Medical evidence

Clearly, it is important for the company to get its own medical diagnosis as to Sundae's condition. It needs to find out whether or not Sundae has a physical or mental condition and if so, whether or not this is aggravated by any other circumstances, ie, working conditions, personal circumstances or any other. Obviously, it would be helpful to write to her GP to find out more about her condition, but it is essential that the company gets its own medical advice from occupational health or a similar expert. Worldwide Insurers should check that Sundae's contract enables it to do this. If it does not, it is still reasonable to ask Sundae to make an appointment.

Is it a disability?

A key issue is going to be whether or not Sundae's condition amounts to a disability under the Disability Discrimination Act, because Worldwide Insurers will then have a duty to consider what reasonable adjustments it should make to accommodate this disability.

In assessing whether or not Sundae has a disability, it should ask specific questions of the doctor regarding whether Sundae has a physical or mental impairment, if it is substantial and if it is likely to have a long-term (ie, last for more than a year) adverse effect on her ability to carry out normal day-to-day activities. It is also important to get an understanding from the medical experts as to whether her condition is progressive. The diagnosis will then by definition turn to a prognosis regarding her condition. Dependent on what information the specialists come back with, Worldwide Insurers Ltd will then need to consider what, if any, reasonable adjustments it can make.

Reasonable adjustments

Reasonable adjustments can take many forms, depending upon the condition suffered by the employee. Medical advisers as well as outside support groups can assist in informing Worldwide Insurers about what reasonable adjustments could be beneficial.

The company needs to make that assessment taking account of facilities, resources and cost. As recent case law has shown it is insufficient for an employer to simply assume that an employee who, for example, is deaf cannot undertake a role which involves telephone work. The way an employer has to think is about others within the organisation who may be able to take on that aspect of the role or to decide whether it is a fundamental requirement of the role. If the role can easily be assigned to somebody else then clearly not to recruit the deaf person constitutes disability discrimination.

In this case, armed with the medical advice, Worldwide Insurers needs to take account of what adjustments it can make and what alterations to Sundae's working conditions, working hours, equipment, and so on, can be made to facilitate a return to work on a more permanent basis.

Managing Sundae back IN to the business

Consultation

The fact that Sundae has already made a request for a change to her working hours means that Worldwide Insurers should consult with her about it and at least consider it, although it does not have to agree to this if it can show reasons why the adjustment is not practicable, provided it comes up with some alternatives.

Weighing up the costs

In this situation it is unlikely that Worldwide Insurers is going to be able to flatly refuse an alteration in working hours unless to do so would require it to employ somebody else to cover the hours she is missing or it would have a detrimental impact on clients. If it is essential that the hours remain the same then the company needs to think about what it can offer instead.

Sundae has already made the point that to stand for long periods of time causes muscle fatigue or aggravates the muscle fatigue and getting a train at peak time means that she is unlikely to get a seat. Worldwide Insurers should therefore consider whether or not it should provide transport for her. In making this assessment, it will need to calculate not only the cost of providing a taxi service, but also the alternative cost of hiring someone to work 9.00am until 10.30am and 4.30pm until 5.30pm to fulfil the hours Sundae would otherwise be unable to do. If, on balance, it would cost less to provide a taxi, then a tribunal would consider that this was a reasonable adjustment and the sort of adjustment an employer should make in these circumstances.

Managing Sundae OUT of the business

Consultation

Obviously managing Sundae out of the business might flow automatically from the discussions Worldwide Insurers is having with her with regard to the reasonable adjustments. If Sundae is not prepared to co-operate, by disputing all adjustments proposed by the employer or refusing to see the medical adviser or consent to access to her GP reports, then the company may have no option but to move towards a disciplinary process regarding her attendance.

Disciplinary action

Clearly this will involve a series of warnings so it is unlikely that Worldwide Insurers is going to be able to dismiss her quickly following this route. However, if it has gone through a consultation period with her and presented realistic and reasonable proposals with regard to reasonable adjustments and Sundae is being obstructive, then potentially it may be able to consider a conduct-related dismissal as a result of her behaviour.

Dismissal

This approach is likely to be more risky than going down the capability/disciplinary route and is more likely to look like victimisation. Ultimately, a fair process should not require the employer to provide a compromise agreement, however, this is always an option as it enables the employer to achieve a clean break.