beware incapacity dismissals and judging what are day to day activities


Aderemi v London and South Eastern Railway Ltd gives some useful pointers about what sort of disability will be a protected characteristic under the Equality Act 2010.

  • – While an inability to carry out all your work duties does not equate to an inability to carry out day to day activities, it should not be assumed from this that a work activity is not a day to day activity;
  • – Tribunals should concentrate on what the employee cannot do, not what he can do, when looking at whether there is a substantial impact on day to day activities;
  • – When looking at what is substantial or not, it is wrong to think that there is a sliding scale with ”trivial” at one end and “substantial“ at the other – if an effect is not trivial, it is substantial

In this particular case, Mr Aderemi was a station assistant who developed a bad back and was unable to stand for long periods, bend, or lift. This gave him problems carrying out his main duties including checking tickets. His employer dismissed him on the ground of lack of capability. An employment tribunal found that he was not disabled, so his dismissal was not unlawful discrimination, nor was it unfair. In the Employment Appeal Tribunal Mr Justice Langstaff (President) took the view that the tribunal had been unduly restrictive in its approach to what amounted to a day to day activity. As he pointed out:

If the problem is put simply, as being on one’s feet in a job for lengthy periods of time, then it is not difficult to think of very many jobs which would fit that description.

In other words, the ability to stand for longer than half an hour at a time is so commonplace a part of people’s working lives that is falls within the scope of “day to day activity”.

The EAT ordered that both the discrimination finding and the finding that the dismissal was fair were to be reconsidered, pointing out that the decision as to disability could have a knock on effect on the fairness of the dismissal, especially if the disability was caused by the employee’s work.

The case highlights the potentially awkward overlap between potentially fair dismissal on the ground of incapacity and disability discrimination. The letter notifying dismissal included a typical explanation of the reason from an incapacity perspective: Continue reading

is "hot-desking" bad for your health?

Two cases this month looked at the impact of the application of provisions, criteria or practices ("PCPs") in the workplace and employers’ duties to make reasonable adjustments.

The first, Roberts v North West Ambulance Service, related to an ambulance dispatcher who suffered social anxiety disorder. He worked shifts, and the employer operated a "hot-desking" system in the room where he worked. After sitting at a desk in the middle of the room, Mr Roberts decided that this may exacerbate his condition. He therefore moved to a desk at the edge of the room, and asked that he should always work there. Although the employer agreed in principle, the practical steps they took did not guarantee this would always happen, and the shift patterns made if difficult to ensure that he should have the same desk all the time.

Continue reading

costs of reasonable (or not?) adjustments under the spotlight as deaf applicant loses discrimination case on appeal

The vexed question of what constitutes a ‘reasonable adjustment’ and whether cost can be a factor in the equation has long been a problem for employers when dealing with disabled employees and job applicants. The Equality Act 2010 largely replicates the provisions concerning ‘reasonable adjustments’ which were previously contained in the Disability Discrimination Act 1995 (DDA). The problem for employers is that the test of reasonableness is objective and is to be determined by a tribunal. Some guidance is provided in the EHRC Employment Statutory Code of Practice (previously contained in the DDA) which sets out a list of factors to be taken into account. However, case law has proved to be helpful to employers in setting out some of the parameters of what may be considered to be reasonable adjustments.

The EAT has now upheld the tribunal decision in Cordell v Foreign & Commonwealth Office which considered the question of to what extent cost can be a factor in the ‘reasonable adjustments’ equation and has helpfully laid down some further guidelines. Continue reading

disability discrimination and the effectiveness of reasonable adjustments – exactly what is "reasonable"?

The extent of the duty to make reasonable adjustments to avoid placing a disabled person at a substantial disadvantage, including taking steps to get them back to work, is highly fact sensitive. It has been looked at by the Employment Appeal Tribunal in a number of recent cases without giving a definitive answer about how effective an adjustment needs to be to qualify as a "reasonable" one to expect the employer to take.

The EHRC Code of Practice on Employment Chapter 6: Guidance on Reasonable Adjustments indicates that the effectiveness of a measure is a factor which may be take into account in deciding whether a measure is reasonable, but just how effective does a measure have to be to be reasonable?

For example, where a proposed adjustment to reduce emphasis on communication skills in a set of redundancy selection criteria would nonetheless still not have prevented an employee with a social anxiety disorder being selected for redundancy, that adjustment was held to be "not reasonable" (Lancaster v TBWA Manchester). Likewise, from the case of Salford NHS Primary Care Trust v Smith, it seems that although consultations, trials, and exploratory investigations may lead to the making of a reasonable adjustment, because they do not directly alleviate the disadvantage the disabled person suffers they are not in themselves "reasonable adjustments" as defined in the legislation. Therefore a failure to undertake them will not, apparently, be a breach of the duty. Continue reading

newsletter Equality Act 2010 – disability discrimination

As noted in a previous newsletter blog post the substance of previous law making it unlawful to discriminate against a person in the employment field because of disability remains generally unchanged by the Equality Act 2010. However various detailed changes are probably more significant if the “protected characteristic” is disability than if it is one of the other eight protected characteristics.

Firstly, “comparators”. As a matter of commonsense, “discrimination” involves making comparisons. In 2008 the House of Lords identified a particular problem in selecting the appropriate person with whom a person suffering from a disability should be compared for the purposes of deciding whether there had been unlawful discrimination. Obviously the comparison should be with a fit person, but which fit person? In simple terms, in the employment field, if a person was unable to come to work because of a disability and was dismissed for non-attendance, should his/her position be compared with (i) that of a fit person who, being fit, would not have been absent from work (and so would not have been dismissed) or should his/her position be compared with (ii) that of a fit person who was dismissed for non-attendance? If it were (i) the disabled person would have been discriminated against; if it were (ii) there would have been no discrimination as the disabled person would have been treated in exactly the same way as the fit person.

Those interested in the detail may like to look at the judgment in London Borough of Lewisham v Malcolm HL 2008 but the important point for present purposes is that the Equality Act 2010 simply sweeps away the problem. The position from 1 October 2010 is simply that “A person (A) discriminates against a disabled person (B) if (a) A treats B unfavourably because of something arising in consequence of B’s disability, and (b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim”. The result is a special category of “disability-related discrimination”, essentially unjustified less favourable treatment for a reason which relates to a person’s disability with no requirement for a comparator.

Thus it is now clear that in the above example the disabled person would, all else being equal, win a disability discrimination claim under the Equality Act 2010.

Secondly, the meaning of “disability”. In general the meaning of “disability” for Equality Act 2010 purposes is very similar to that used previously – it means a physical or mental impairment which “has a substantial and long-term adverse effect” on a person’s “ability to carry out normal day to day activities”. There are a couple of minor changes to the definition, one for the benefit of cancer sufferers and the other concerning what is meant by “normal day to day activities” but these are unlikely to make much practical difference. A change which will make a practical difference, albeit perhaps not in very many cases, is that a child aged under 6 will qualify as suffering from a disability regardless of whether their disability affects their normal day to day activities, provided of course that they satisfy the other conditions required to qualify – this is likely to be particularly relevant in the context of alleged “associative discrimination” against an employee who is a carer of a small child (as to which see the earlier newsletter blog post).

Thirdly, pre-employment health enquiries are generally banned as from 1 October 2010. This point is covered in more detail in the following blog post concerning pre-employment health questions.

Fourthly, indirect discrimination applies in disability cases from 1 October 2010. In practice it should be generally possible for an employer to avoid liability if he makes an appropriate reasonable adjustment once he has become aware of the employee’s disability.

This is an item from our October 2010 newsletter. If you are interested in subscribing to our monthly newsletter please click here.

pre-employment health enquiries – good or bad idea?

Many employers require pre-employment health checks for prospective employees, often by requiring a successful candidate to complete a questionnaire. However, what happens if an employer decides to withdraw an offer of employment based on the information provided? Once again, our friend the Equality Bill comes into play following an amendment to the Bill in the House of Lords which bans general health enquiries so that employers can only ask questions which are directly related to the candidate’s ability to do the particular job.

Disability campaign groups such as RADAR have maintained that employers routinely discriminate against people with medical conditions before they even commence employment and that disabled people are put off applying for jobs when they know that they will be questioned about their health. The practical effect is that people with mental health issues, medical conditions or disabilities will not be forced to disclose their conditions as part of the recruitment process.

What is the point of pre-employment health checks? A cynic would say that they are a means of applying disability discrimination. For example, no sensible employer would ask a job candidate whether or not she was pregnant as part of the recruitment process, so why require candidates to complete a general questionnaire which is akin to a life insurance application. On the other hand, some employers contend that it is important to know about health issues so that any necessary adjustments and allowances can be made. For my part, I take the view that pre-employment health questionnaires are outdated, irrelevant and potential trouble for employers if they lead to disability discrimination. You can read the House of Lords discussion about the matter here.