Disability Discrimination guide part 1- Discrimination arising from disability

In this part 1 of our guide to disability discrimination we will be considering Discrimination arising from disability and the development of case law.  In our next newsletter, part  2 will examine the duty to make reasonable adjustments.

Background

The Equality Act 2010 ("EqA 2010") unified various pieces of legislation outlawing discrimination against people with different protected characteristics. The protected characteristics include age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, race, religion or belief, sex and sexual orientation.

Discrimination arising from disability

Some categories of discrimination, such as direct discrimination, apply to all protected characteristics. However, the EqA 2010 included two special categories aimed at preventing discrimination against disabled people:

• Discrimination arising from disability (s.15 EqA 2010); and
• Duty to make reasonable adjustments.

Direct discrimination only protects an employee if they are treated less favourably than a comparator employee because they are disabled. By contrast, Discrimination arising from disability, aims to protect a disabled person from unfavourable treatment because of something arising in consequence of their disability.

The government introduced the "discrimination arising from disability" rules in section 15 of the EqA 2010, with the aim of "re-establishing an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment".

Statutory test

Under section 15(1) of the EqA 2010, "discrimination arising from disability" occurs where both:

• A treats B unfavourably because of something arising in consequence of B's disability.
• A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

A two-stage test

The case of Basildon & Thurrock NHS Foundation Trust v Weerasinghe UKEAT/0397/14, found that two steps should be applied by tribunals in deciding whether Discrimination arising from disability has occurred:

• Did the claimant's disability cause, have the consequence of, or result in, "something"?
• Did the employer treat the claimant unfavourably because of that "something"?

It may assist to apply this two-stage step to an example provided by the EHRC Code:

An employer dismisses a worker because she has had three months’ sickleave. The employer is aware that the worker has multiple sclerosis and most of her sick leave is disability-related. The employer’s decision to dismiss is not because of the worker’s disability itself. However, the worker has been treated unfavourably because of something arising in consequence of her disability (namely, the need to take a period of disability-related sick leave).

Firstly, the disability must have caused "something" to arise. In the above example, the "something" is the sickness absence. Secondly, whatever has arisen from the disability must have caused the unfavorable treatment. In the above example the dismissal was caused by the sickness absence and so the two-stage test is established. If the employer had only took formal action in respect of non-disability related absence the causal connection would not be established.

In that case can an employer ever take formal action in respect of disability-related absence? The answer is yes, because an employer can still defend a claim if the unfavourable treatment was justified in the circumstances. We will consider this later.

Employer's knowledge of disability required

An employer cannot be liable for Discrimination arising from disability unless it knew (or should have known) about the employee's disability.

An employer may struggle to argue that they could not have known about an employee's disability. In the words of the EHRC Code, "an employer must do all they can reasonably be expected to do to find out if a worker has a disability". The Code makes the following additional points:

• Employers should consider whether a worker has a disability even where one has not been formally disclosed, as, for example, not all workers who meet the definition of disability may think of themselves as a "disabled person". When making enquiries about disability, employers should consider issues of dignity and privacy and ensure that personal information is dealt with confidentially.
• If an employer's agent or employee (such as an occupational health adviser, a personnel officer or a recruitment agent) knows, in that capacity, of an employee's, applicant's or potential applicant's disability, the employer will not usually be able to claim that they do not know of the disability. Employers therefore need to ensure that where information about disabled people may come through different channels, there is a confidential way to bring that information together to make it easier for the employer to fulfil its duties under the EqA 2010.

What if an employee conceals their disability?

In A Ltd v Z UKEAT/0273/18, the EAT overturned a tribunal's finding that an employer should have known that its employee, Z, was disabled. While Z was disabled by reason of mental impairments (stress, depression, low mood and schizophrenia), she had concealed them, explaining sickness absences by reference to physical ailments. The tribunal found that as the result of information provided on GP's certificates about Z's last sickness absence, the employer should have made enquiries about Z's health and thus ought to have known that Z was disabled. The EAT held that the tribunal had erred because it should have asked what the employer might have known had it made those enquiries. Given the tribunal's findings that Z would have continued to suppress information about her mental health problems and would not have agreed to an occupational health referral or other medical examination that might have exposed her psychiatric history, the employer could not have been reasonably expected to know of Z's disability.

What is meant by unfavourable treatment?

For discrimination arising from disability to occur, A must treat B unfavourably. The concept of "unfavourable" treatment (as opposed to "less favourable" treatment) means that no comparator is required.

Although there is no statutory definition of "unfavourable treatment," the Supreme Court gave some guidance in Williams v Trustees of Swansea University Pension and Assurance Scheme and another [2018] UKSC 65:

It requires tribunals to answer two simple questions of fact:

• What was the relevant treatment?
• Was it unfavourable to the claimant?

The court considered the EHRC Code to be helpful. The court referred in particular to the following aspects of the EHRC Code:

• being treated unfavourably means that the person "must have been put at a disadvantage"; and
• "the courts have found that ‘detriment’, a similar concept, is something that a reasonable person would complain about, so an unjustified sense of grievance would not qualify…. It is enough that the worker can reasonably say that they would have preferred to be treated differently."

As such an employee will often find it easy to show that treatment was unfavourable.

In Williams, the employee took ill-health retirement at age 38 due to disability and became entitled to an enhanced pension. However, the pension was based on the salary he received while working part-time in the period leading up to his retirement, after his employer had reduced his hours to accommodate his disability. He argued that the pension should have been calculated on the basis of the full-time salary he had been receiving before switching to part-time hours.

The court concluded that the relevant treatment was the award of an enhanced pension. There was nothing unfavourable about that. As such, advantageous treatment will not be unfavourable merely because it might have been more advantageous.

In McAllister v Revenue and Customs Commissioners [2022] EAT 87, the employee was entitled to a CSCS payment because of his dismissal due to disability-related absences. However, he received a reduced payment because of his attitude: he had failed to answer calls, delayed returning relevant forms, displayed disruptive behaviour and turned up late during a phased return to work. His claim failed because the "relevant treatment", namely, the entitlement to payment under the CSCS, was not unfavourable; if anything, it was more favourable than it would have been if he had been dismissed for a reason other than his disability.

Treatment "because of something arising in consequence of B's disability"

As noted above under "two-stage test" the unfavourable treatment must be because of something that arises in consequence of the employee's disability.

Perhaps the most common example of treatment because of something arising in consequence of disability is where an employee is treated unfavourably because of a period of disability-related absence. However, less obvious situations may arise. Take the following examples from the EHRC Code:

• An inability to work unaided.
• A need for regular rest breaks or toilet breaks.
• Restricted diet.
• Slower typing speeds.
• Regular hospital appointments.
• Difficulties in using public transport.
• A need for specialist computer equipment.
• A need for private and/or quiet working environment.

The EHRC Code gives the example of a woman who is disciplined for losing her temper at work, but whose behaviour is out of character and is a result of severe pain caused by cancer, of which her employer is aware. The Code states that the disciplinary action would be unfavourable treatment because her loss of temper arose from her disability. There is a connection between the "something" (that is, the loss of temper), her disability, and the unfavourable treatment.

In Risby v London Borough of Waltham Forest UKEAT/0318/15, the Court loosened the connection between the disability and the "something" even further. Mr Risby was a paraplegic who lost his temper and verbally abused a colleague when he learned that his employer had moved a course venue to a basement that was inaccessible to him as a wheelchair user. A tribunal found that Mr Risby's short temper was a personality trait not related to his disability and dismissed his claim of Discrimination arising from disability. However, the EAT found a sufficient link between Mr Risby's disability, his loss of temper and his employer's actions. It reasoned that had Mr Risby not been paraplegic, he would not have been angered by his employer's decision to hold the course in a venue inaccessible to wheelchair users.

Objective justification

As noted above employers can defend claims of discrimination arising from disability if unfavourable treatment is justified in the circumstances. To succeed with this defence the employer needs to show that unfavourable treatment was "a proportionate means of achieving a legitimate aim."

It is easy for employers to demonstrate a legitimate aim. For example, in a sickness absence case, the need for staff to attend regularly to operate the business is a legitimate aim. As such the main issue is usually whether unfavorable treatment is proportionate. When assessing this Tribunals seek a balance between the needs of the employer and the discriminatory impact on the individual. For example, in a sickness absence case, showing that the business would struggle to operate without recruiting a permanent replacement would suffice to show a significant impact on the employer. If the chances of the employee returning to work are very low and they have exhausted sick pay, then dismissal has little practical impact on the employee and so unfavourable treatment would probably be justified. Conversely, if an employer can operate efficiently without the employee and the medical evidence shows that an employee has a high chance of returning to work soon, dismissal probably wouldn't be justified.

Why obtain Occupational Health advice?

Lawyers frequently recommend obtaining occupational health advice. However, employers often find that occupational health advice is unhelpful, simply repeating what the adviser has been told by the employee. The reason that lawyers continue to recommend occupational health advice is that such advice can help to defend any Tribunal claim. It could help in the following ways:

1. An employer will struggle to argue that they did not know a medical condition was a disability if they did not seek occupational health advice. As noted above an employer will be deemed to have known an employee was disabled if they ought to have known. In most cases the absence of an Occupational Health report will suffice to persuade a Tribunal that an employer ought to have known.
2. An Occupational Health report can help establish a justification defence. It will usually be difficult for an employer to show that unfavourable treatment is justified if they have not scrutinised the medical position. As noted above a crucial part of the balancing exercise involves considering the discriminatory impact on the employee. The employer can only consider this impact by reviewing medical evidence.

Summary

In summary liability for Discrimination arising from a disability under s.15 EqA 2010 can arise in a broad range of circumstances. We would recommend seeking legal advice in the following scenarios:

1. You wish to take formal action in respect of any sickness absence;
2. You wish to take disciplinary action but you suspect that the employee's conduct may have arisen from a medical condition;
3. You have concerns as to whether a medical condition makes it unsafe for an employee to continue undertaking their current role;
4. An employee has made a flexible working request or requested some other change to their role due to a health condition.

Our employment team have vast experience of helping employers find the balance between meeting the needs of their business and complying with the legislation.

CONTACT US

If you are an employer, or employee who needs guidance on any of the above matters, we are here to help.  Please do not hesitate to contact our Employment Law Team on 01522 814638, or make an enquiry here.