beware incapacity dismissals and judging what are day to day activities

railway_tickets

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:

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.

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.

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.

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…

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…