When considering if a worker is disabled or not for the purposes of being covered by the Equality Act 2010, employers must consider the impact of any physical or mental impairment on the workers “ability to carry out normal day-to-day activities”.
The worker’s capabilities may not be obvious and may need assessment. In an Employment Tribunal case in 2012, Aderemi v London and South Eastern Railway Limited, the Judge said that employers should focus on what a member of staff cannot do, not what he can do.
Brief details of the case
Mr Aderemi was employed as a station attendant at London Bridge train station – he manned the ticket gates and inspected tickets and was often a first point of contact for the customers. The job involved standing up for most of the day.
In late 2007 Mr Aderemi developed a back problem, which he suggested had been caused by standing for prolonged periods of time at work. Severe lower-back pain meant that he was absent from work a few times throughout 2009 and 2010.
Each time he returned to work from sickness absence his employer assessed him under its medical fitness scheme. Each time, Mr Aderemi was found fit for work but with limitations on him standing and bending.
Eventually, after having back problems for more than 2 years, his employer decided that he was unfit to carry out his role within those limitations and dismissed him on capability grounds.
Mr Aderemi complained to an Employment Tribunal (ET) who judged that he had not been unfairly dismissed, and that he was not disabled for the purposes of the Equality Act. They felt his back problem did not have a substantial impact on his ability to carry out normal day-to-day activities and listed a number of day-to-day tasks which they considered he could manage.
Mr Aderemi appealed to the Employment Appeal Tribunal (EAT). The EAT criticised the ET for focussing on the tasks he could do and said they should have looked at what he could not do, which included standing for prolonged periods of time.
The EAT did not find whether Mr Aderemi was considered to be disabled and whether his employer had been discriminated against him, but sent the case back to another ET to deal with these points.
Importantly – activities that are required as part of a job were not normally considered to be normal day-to-day activities under the Equality Act. However, in this case the EAT said that many people are on their feet for much of the day, which means that standing for a long time at work should be considered as a normal day-to-day activity.
And in February 2016, the Employment Appeal Tribunal, found in Banaszczyk v Booker that Mr Banaszcyyk’s normal work activities were ‘normal day to day activities’. (Mr B was employed as a ‘picker’ and was required to lift goods of up to 25kg, picking a specified number of cases each hour. Following a back injury he was no longer able to achieve this ‘pick rate’ and was dismissed on the grounds of incapability. He bought unfair dismissal and disability discrimination claims. His employer, Booker, said he was not disabled as his back injury did not have a substantial effect on his carrying out normal day-to-day activities and ‘picking’ was not a normal day-to-day activity). Before these claims went ahead to Tribunal, a preliminary hearing was held to determine whether he had a disability. The Tribunal found he did not as his job did not involve normal day-to-day activities. The EAT disagreed, and found he was disabled, as large numbers of people in the UK are employed to do work involving lifing and moving heavy loads across a range of occupations. Therefore, work activities that are non-specialised and common across many occupations will be ‘normal day to day activities’. This decision does mean that the current Guidance that accompanies the Equality Act which defines the concept of a normal day to day activity may now not be reliable.
What makes a worker disabled under the Equality Act?
If the answer is ‘yes’ to the following points then they are likely to be described as disabled:
- Does the worker have a physical or mental impairment?
- Does that impairment have a negative impact on the worker’s ability to carry our normal day-to-day activities?
- Is the negative impact substantial?
- Is the impact long term (i.e. likely to continue for a year or more)?
The Department for Work and Pensions updated their advice on Employing Disabled People in July 2014 which you can read here.
In 2015 the Government will introduce a ‘Fit for Work Service’ for Employers – you can read the details about the new service here.
With regards to addictions – alcohol, nicotine or addiction to an other substances (except where the addiction originally resulted from the administration of medically prescribed drugs) are specifically excluded from the definition of disability under the Equality Act 2010. However, illnesses caused by an addiction may be covered – e.g. depression or liver damage caused by alcohol addiction may be covered if it meets the above criteria – or where the addiction is a symptom or side-effect of some other medical condition.
Mental Health impairments can include ‘personality disorders’ as they tend to be long-term. In 2016 in Wickers v Colchester Visionplus Ltd t/a Specsavers Opticians a Director’s comment to an employee with depression to “pull yourself together” was found to be disability discrimination. Ms Wickers had received some formal and informal warnings for failure to comply with her employers’ absence notification procedure, lateness and a dispensing error. During an appraisal with a Director she became upset and he advised her to see her GP; she later told him she was struggling with depression; he replied to say that he “everyone gets depressed sometimes, you just have to pull yourself together”. Following more absences and lateness the Director decided to start disciplinary action. Ms Wickers had told him she was on medication and had been diagnosed with depression and then resigned because she was told she was likely to be dismissed. The Tribunal found that the director’s approach was unsympathetic and they had failed to make reasonable adjustments (she had been late because she had overslept due to her medication and the effect of the medication on her sleep was something arising from her disability).
When is stress caused by work, a disability? Generally stress caused by difficulties at work is unlikely to be a disability on its own, as it will have little of no affect on his/her ability to carry out normal activities; while clinical depression and anxiety are likely to be.
In City of York Council v Grosset 2016, Mr Grosset had been dismissed from his job as a teacher as he had shown an 18-rated film to classes of 15-16 year old pupils. Mr Grosset had cystic fibrosis (a disability) and the EAT found that he had suffered unfavourable treatment because of his misconduct which arose as a consequence of his disability. His work load had greatly increased and he began suffering from stress and the EAT felt his impaired mental state arose “in large part” because of his disability. The Employer did not have medical evidence when they dismissed him and made the decision that his misconduct was not linked to his disability. In similar circumstances, Employers should obtain medical evidence to see if there is a link between the misconduct and the disability.
Expressly excluded from the Equality Act are conditions such as exhibitionism, tendency to steal or a tendency to physically or sexually abuse others. (In 2015, in a case about Education provision, not about Employment, suggested that where an employee’s disability manifests itself in violent conduct towards others, the employer will be able to take action, including dismissal, without the risk of a discrimination claim, as long as the action taken by the Employer is related to the violent conduct and not to the underlying disability condition).
HIV/Aids, Multiple Sclerosis and Cancer are treated as a disability from the point of diagnosis (so individuals are protected before the condition may have had any effect on their abilities to carry out day-to-day activities). Progressive conditions, like Motor Neurone Disease, are treated as a disability as soon as there is any impact on daily activities that will have a substantial impact in the future.
Is Obesity and the medical problems it causes a disability? In Walker v SITA Information Networking Computing Limited in February 2013, the Tribunal found that Mr Walker, who was clinically obese and suffered from a number of medical complications, was not disabled as defined in the Equality Act; they felt his condition was a ‘species of self-harm on a par with alcohol or drug addiction’. The Employment Appeal Tribunal did not agree and said the cause of his medical conditions was irrelevant and that what was relevant was that Mr Walker was suffering from a number of physical and mental conditions (howsoever caused) which caused him impairments capable of being disabilities under the Equality Act. So, the complications caused by Obesity may be defined as a disability if they are of sufficient duration (more than one year) and substantially impair the employee’s day to day activities.
And in July 2014, however, the advocate general of the European Court of Justice offered his ‘opinion’ on whether obesity is a disability and we look at the details here. In December 2014 the European Court said that obesity can be a disbility in certain circumstances and you can read the full details here.
Allergies and Skin Conditions – hay fever is specifically excluded from the definition of disability (except where it aggravates the effect of another condition) but severe allergies such as a nut intolerance can come within the definition of disability. Skin conditions can be a disability if they have a major long-term effect on the sufferer’s normal day-to-day activities.
Diabetes – as diabetes can have a major effect on an individuals eating patterns employers may be required to make reasonable adjustments for a diabetic employee to help him or her control the condition, e.g. allowing the employee to take breaks at a particular time. In a 2014 case Metroline Travel Ltd v Stoute, the Employment Appeal Tribunal found that a claimant who could control his type 2 diabetes by avoiding sugary food and drinks was not disabled (as this was not a medical treatment).
Stammering and Dyslexia – individuals with severe cases can be accepted as having a disability.
In February 2016 an employee (Kumulchew) with dsylexia won a discrimination case against Starbucks. Kumulchew worked as a supervisor at Starbucks in Clapham, london. She was required to record refrigerator and water temperatures at specific times on a chart. After entering incorrect information her employer accused her of falsifying documents, although her dyslexia meant she had difficulties with reading and writing/recording numbers and words, and she had told her employer she was dyslexic. She was given less duties and told to retrain which made her feel suicidal. The Tribunal found that Starbucks had failed to make reasonable adjustments for her disability and had discriminated against her.
It is believed that about 1 in 10 people have some form of dyslexia which causes difficulties with reading and writing, however memory, maths and organisational skills can be affected. This may mean changes need to be made for dyslexic candidates at interview (when applying for work or wanting promotion or in a redundancy situation) and they may need more time to consider written material given to them (e.g. before or after a disciplinary or grievance meeting) or be accompanied by a friend or family member; written material may also need to be in a larger font with clear typefaces and increased line spacing.
How does an employer “know” if an employee is disabled?
The duty to make “reasonable adjustments” (see below) in respect of a disabled employee does not arise if the employer does not know (and could not reasonably be expected to know) that the individual is disabled and that he/she is likely to be placed at a substantial disadvantage because of the disability.
In many cases it will be obvious, and so there is no dispute. However, in many cases (including mental illness) the situation is more complicated. Employers will need to make reasonable enquiries from the employee and obtaining medical opinions from the employees GP where possible and an Occupational Health professional.
In a 2015 case Donelien v Liberata the Employment Appeal Tribunal found that when an employer did not have constructive knowledge of an employee’s disability (i.e. they could not reasonably be expected to know), they were not required to make reasonable adjustments. The Employer had asked its Occupational Health provider to prepare a report on Ms Donelien’s condition and their reply did not fully answer the Employer’s enquiries. Liberate asked for a more detailed response from Occupational Heatlh, which still lacked detail. The EAT found it was difficult for Liberata to draw a distinction between what she could not do and what she would not do, and that they had taken reasonable steps to understand her condition.
Under the Equality Act, if someone has a disability as defined by the Act, Employers are under a duty make any ‘reasonable adjustments’ to the workplace to help accommodate the employee to continue at work – which may include time off for treatment, flexible working, adjustments to work or technical aids or giving or arranging training or mentoring.
Whether this time off for treatment should be paid or not is not covered by the Act. This decision will depend on the circumstances and the Employer should consider their financial resources, the terms of the employees contract, whether or not the employer normally pays employees for time off work to attend medical appointments, the amount of time required.
Should an employer pay for treatment?
In Croft Vets v Butcher 2013, Butcher was an overworked Finance and Reception Manager at a veterinary practice. Butcher went off on long-term sickness with work-related depression and stress. Croft Vets paid for a private Consultant Psychiatrist to examine her and the Psychiatrist suggested that Croft fund 6 x psychiatric/counselling sessions for Butcher at the cost of £750. The psychiatrist accepted that even with the treatment Butcher would remain unfit for work for many months and may never recover sufficiently to return to work.
Croft did not agree to these counselling sessions and did not consult Butcher about them. Butcher (and the Employment Appeal Tribunal) believed that Croft were more concerned about their own liability for the illness, rather than the steps which it could take to accommodate her illness.
Butcher resigned claiming that Croft had failed to make reasonable adjustments for her disability. Croft disagreed saying Butcher could have obtained the treatment on the NHS, free and it was unreasonable for them to have to pay in view of the treatments limited prospects of success. The Employment Appeal Tribunal disagreed and queried whether the NHS could provide such treatment and the time-scale it would be available within.
Croft also said that requiring it to pay for the medical treatment would cross the line from reasonable adjustment into medical treatment. The EAT disagreed, saying the sessions recommended were not strictly medical treatment but a specific form of support (which fell within the ‘mentoring’ example in the legislation) and was intended to lessen the impact of the impairment on the individual in the workplace.
The EAT upheld the ET’s findings of disability discrimination and constructive dismissal. The EAT made clear it was not imposing an obligation on Employers to fund private medical treatment in general, but Employers should pay for specific forms of medical support where this would assist disabled employees to return to work.
What types of other adjustments should be made?
In The Environment Agency v Donnelly, Donnelly suffered severe knee, back and hip problems. Under her contract she was entitled to arrive at work any time before 10am. The claimant usually got to work at 9.30am but by that time the main car park tended to be full. The over-flow car park was an extra 10 minutes walk away.
Donnelly claimed it was a reasonable adjustment to be allocated a car parking space in the main car park so she would not have to walk the extra distance in bad weather and on dangerous surfaces. The Employer argued she could come to work at 9am (when there would be free parking spaces); or they could offer her a lift to/from the other car park; or she could use a disabled space in the main car park provided she move her car if a disabled badge holder needed it.
The Employer obtained a report from an ergonomics expert who said that Donnelly was unable to work on uneven or slippery surfaces and recommended a parking space in the main car park.
The Tribunal found that the Employer had failed to make reasonable adjustments as she suffered a significant disadvantage from walking from the distant car park. The EAT agreed – the claimant had genuine medical reasons for not arriving at work earlier, although this was irrelevant as it was up to the Employer to make reasonable adjustments and not up to Donnelly.
Other Reasonable Adjustments:
- Reallocating part of the job a disabled person cannot do or swapping jobs with another employee
- Providing an appropriate piece of equipment to make the work less painful
- Redploying a disabled person to a non-public facing role
- Allowing for regular breaks to cope with the disability
- Retaining an employee temporarily in a different job.
In South Staffordshire & Shropshire Healthcare NHS Foundation v Billingsley 2016, the EAT said that whether a proposed adjustment will work (to alleviate disadvantage) is an important factor in deciding if it is reasonable for the employer to make the adjustment, it is not necessary for the employee to demonstrate the the reasonable adjustment would be completely effective (in advoiding the disadvantage); it is enough to show there is chance the adjustment would work (to alleviate the disadvantage).
Is reducing hours a reasonable adjustment?
In Secretary of State for Work & Pensions (JobCentre Plus) v Higgins, in 2013, the EAT considered the time limits to which employers must consider allowing employees to return to work on a phased basis following long term sickness.
Higgins had been absent for over a year but had reached the point of being able to return to work, on reduced hours, which his GP’s fit note supported. The EAT were considering whether it was reasonable for his employer to limit the period of reduced hours to 3 months or if this should have been left as an open-ended arrangement; and they decided his employer could limit the period to 3 months as there was a limit to the extent to which it is reasonably practicable for employers to offer adjusted working arrangements.
However the EAT said that at the end of the 3 months, if the employee is still unable to return to their usual hours of work, the employer remains under a duty to consider if it would be reasonable for the adjusted hours to continue.
In Carreras v United First Partners Research, May 2016, the EAT held that an expectation or assumption that a disabled employee would work late in the evenings was a provision, criterion or practice (PCP) which so required the employer to make reasonable adjustments. For a worker to make a successful claim for a failure to make reasonable adjustment they must identify that they were placed at a disadvantage by a PCP (or a physical feature of their Employer’s premises or by their Employer failing to provide an auxiliary aid). Mr Carreras was an analyst in a brokerage and research firm who suffered serious injuries in a bike accident. Before his accident he had worked long hours but after the accident he experienced dizziness, fatigue and headaches and had difficultly concentrating, focusing and working late. On his return to work from sick leave he worked 8 hour days but after some time he asked to work late, and then his Employer asked him to worked late and then they assumed he would work late. Mr Carreras eventually formally told his Manager that he objected to working late and after an argument with his Manager he was basically informed (shouted at, across an open plan office) that if he did not like it he could leave. Carreras resigned and claim constructive dismissal and disability discrimination. The Employment Tribunal upheld his constructive dismissal claim because of the Manager’s conduct, but, dismissed his discrimination claim saying he was not ‘required’ to work late. The EAT disagreed, saying there was an ‘expectation or assumption’ that employees would work long hours – and then sent the case back to the same ET to decide the nature of effect of the disadvantage caused by the PCP and what, if any, reasonable adjustments should have been made. Employers with a ‘long hours culture’ should make sure that those with a disability are truly happy with their working hours and are referred to Occupational Health.
In The Home Office v Kuranchie 2017, Ms Kuranchie who has dyslexia asked to reduce her hours which was agreed. But the Tribunal found that her employer gave her the same volume of work as her colleagues (and it took her longer to complete her work due to her disability). A reduced workload would be a reasonable adjustment in this case, although neither a medical report of the employee had suggested this. This case confirms that it is not up to the employee to suggest adjustments, that duty falls on the employer.
During a redundancy situation:
In September 2014 the Employment Appeal Tribunal found that an employer should have made a reasonable adjustment to redundancy selection criteria which had placed a disabled employee at a substantial disadvantage (even though the employee would have been dismissed for redundancy even if the adjustment had been made). In Dominique v Toll Global Forward Ltd.
Disabled workers should not have their disability-related absence taken into consideration by employers when managing performance issue or applying redundancy selection criteria, as this could be direct discrimination. (A reasonable adjustment here could be for an employer to reduce the attendance level’s to be scored in a redundancy exericse according to the disability).
Where an employee is unfit for any work?
In January 2015, the Employment Appeals Tribunal in Doran v Department for Work and Pensions looked at the question of where an employee has a disability, but they are certified by a Doctor as unfit for any work (and there is no indication of when the employee might be able to return to work) – and said that an employer does not have a duty to make reasonable adjustments in these circumstances.
Managing Sickness Absence:
In a 2013 case, the Employment Appeal Tribunal held that when managing sickness absence in the case of a disabled employee, an employer should ask itself what sort of periods of absence someone suffering from a disability would reasonably be expected to have over the course of an average year due to her disability. As disabled employees may have more sickness absences than others, the strict application of an employers sickness absence policy to them, where that results in any form of disciplinary sanction, may amount to a disadvantage and therefore disability discrimination. In HMRC v Whiteley, Mrs Whiteley, an asthmatic, had 15 days sickness absence between January and October 2010. The HMRC’s sickness absence policy said that absences of more than 10 days in a one year period may trigger a disciplinary process. Mrs Whiteley was issued with a warning and she alleged the HMRC had failed to make reasonable adjustments to its policy as required by the Act. The Tribunal agreed with her. The Employment Appeal Tribunal did not agree and said that:
- In principal there are at least 2 potentially acceptable approaches where an employer is considering what allowances to make for absences which stem from the interaction between a disability and other ordinary ailments. The employer could either “look in detail and with care, and if necessary, with expert evidence at the periods of absence under review and attempt to analyse with precision what was attributable to disability and what was not” or “ask and answer with proper information the question: what sort of periods of absence would someone suffering from the disability reasonably be expected to have over the course of an average year due to his or her disability”.
In 2014 the case of Griffiths V Secretary of State for Work and Pensions, the Employment Appeal Tribunal said that the purpose of “reasonable adjustments” is to enable a disabled employee to carry out his work or to return to work after a disability related absence and it does not apply to how an absence from work should be treated (Griffiths argued that she had been treated less favourably by the use of the DWP attendance policy). However, the Court of Appeal overturned this decision at the end of December 2015, saying that making a reasonable adjustment would apply to how the attendance management policy was operated. The Court of Appeal said that where a disabled employee had a disability that increases her likelihood of absence from work on ill health grounds, following the attendance management policy would disadvantage her in more than a minor or trivial way. It is clear that disciplining or dismissing an employee for absences which are disability-related would amount to unfavourable treatment and would be discriminatory unless justified.
If a disabled employee is redeployed to a different job/lower paid job, this is an amendment of their terms and conditions of employment and the employees express agreement should be sought (see changing terms and conditions here). Whether it will be reasonable to pay a lower salary will depend on all the circumstances – the size and resources of the organisation, the difference between the pay levels, the likely impact on other members of staff of retaining their previous higher pay, the employees length of service, level of skill and value to the company. Employers can choose to freeze the employee’s current pay for a period. In G4S Cash Solutions UK Ltv v Mr Powell, in 2016, an ET and the EAT considered whether preserving an employee’s pay when they were re-deployed to a different role because of the disability, was a reasonable adjustment. Mr Powell was redeployed to a new role but kept his old terms and conditions and thought this was on a permanent basis; a year later he was told he could only continue on a reduced rate of pay. Mr Powell refused these terms and was later dismissed and claimed unfair dismissal. The EAT found that keeping his original rate of pay was a reasonable adjustment and that pay protection was no different to other costs that might be incurred by an employer when making reasonable adjustments.
In 2015, the Employment Appeal Tribunal said, in Makuchova v Guoman Hotel Management (UK) Ltd, that an employer is not required to create the ‘ideal’ job for a returning employee. Makuchova was a hotel supervisor who said her employer had failed to make reasonable abjustments for her, before her dismissal. The EAT found that the employee would have been fit to return to her previous job and that the employer had offered various reasonable adjustments to this role, but the claimant had refused to consider returning to it. She had instead made several unsuccessful applications for other jobs in the hotel, where she would have required re-training. The EAT said there was no duty on the employer to provide training when there were other jobs available (including her own if adjusted) that she could have taken without training. The EAT said that the obligation on Employer to make reasonable adjustments is to do what is reasonable, not necessarily to accept what the claimant thinks is reasonabe.
Any dismissal of the employee would need to be objectively justified, based on the needs of the business and having looked at all of the alternatives. Disciplinary action against an employee because of their absences that are a consequence of their disability may be discrimination. If the employee’s disability affects their long-term ability to carry out their job the Employer should address this as a capability issue not a disciplinary one.
Employers can reasonably request that an Employee provides them with information about the nature and extent of their injury or illness to allow the Employer to ascertain the likely length of any absence.
Terms and Conditions of Employment:
In 2015, in Land Registry v Houghton, a non-payment of a bonus to a disabled employee was found unlawful. The employer had a bonus scheme to reward good performance and attendance; but those employees who had received a formal warning in respect of sickness absence were automatically excluded. Houghton had high absence levels due to a disability-related illness and the Court found that the automatic exclusion from the bonus scheme because of sickness absence warnings was less favourable treatment because of the disablity.
In a 2013 case an Employer was found to have committed disability discrimination by association, because they unfairly treated an employee because of their association with someone with a disability. In Price v Action-Tec Services, Mrs Price was a tele-sales executive who suffered from a degenerative disc disease, while her husband suffered from leukaemia. In March 2011 she accompanied her husband to hospital fro tests, which showed his prognosis was not good.
Price returned to work the next day but the following week her GP signed her off sick for 7 days. On her return, the Manager responsible for recruitment and training said he would not have taken her on had he known about her husband’s illness. Price was dismissed the same day. The tribunal found this was direct disability discrimination because her dismissal was based on stereotypical assumptions that her and her husband’s disability would mean she was unreliable and under-perform.
In Bainbridge v Atlas Ward Structures Ltd the same principal was demonstrated. The Tribunal found that the claimant’s fixed-term contract was not renewed “because he had on occasion taken leave at short notice” to care for his disabled wife “thereby causing the company some inconvenience”
It would therefore be unlawful discrimination to refuse time off because the purpose of the leave is to care for a disabled dependant. The Equality Act does not though impose a duty on an employer to make reasonable adjustments for an employee who has responsibility as a carer for someone who is disabled (associative), and the Court of Appeal confirmed this in June 2014.
In July 2015 in Truman v Bibby Distribution Ltd an employer who suddently dismissed an employee who was performing satisfactorily with good reviews, was found to have committed associative disability discrimination. Mr Truman’s daughter had cystic fibrosis and historically his wife had been the primary carer and Mr Truman had needed little time off work. About a month before he was dismissed, Mr Truman indicated to his line manager that he would need do more caring now as his wife was starting her own business. He was dismissed one day before he had one year’s service (when he would have been entitled to benefit from 18 week’s unpaid parental leave); a Regional Manager had been asked by Mr Truman’s line manager to “gather as much dirt on the claimant as he could”.
If you are an Employer and need ongoing professional help with any staff/freelance issues then talk to Lesley at The HR Kiosk – a Human Resources Consultancy for small businesses – our fees are low to reflect the pressures on small businesses and you can hire us for as much time as you need.
Please note that the advice given on this website and by our Advisors is guidance only and cannot be taken as an authoritative or current interpretation of the law. It can also not be seen as specific advice for individual cases. Please also note that there are differences in legislation in Northern Ireland.
Photo by JD Hancock