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 this article, we’ll be exploring what constitutes a disability, how to identify them, how to help employees with disabilities and the legal implications.
In late summer 2021, Acas and the Department for Business, Energy and Industrial Strategy (BEIS) developed a new advice hub for employers and disabled people in England, Scotland and Wales, which includes advice on discrimination, reasonable adjustments, flexible working, mental health issues and improving equality, diversity and inclusion.
What makes a worker disabled under the Equality Act?
Under the Equality Act, a worker is considered disabled if the answer is ‘yes’ to the following questions:
- 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 August 2020, the government announced that disabled people can now benefit from financial support to work from home, or extra help to stay in the work-place, thanks to an extension to the Access to Work scheme during the coronavirus pandemic. All the details are available at gov.uk.
Aderemi v London and South Eastern Railway Limited case study
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, when a workers capabilities are not obvious.
Mr Aderemi was employed as a station attendant at London Bridge train station – he manned the ticket gates, 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. On each occasion, Mr Aderemi was found fit for work, but with limitations on him standing and bending.
Eventually, after having back problems for more than two 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 hadn’t been unfairly dismissed, and that he wasn’t disabled for the purposes of the Equality Act. They felt his back problem didn’t 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 thought he could manage.
Mr Aderemi appealed to the Employment Appeal Tribunal (EAT). The EAT criticised the ET for focusing on the tasks he could do and said they should’ve looked at what he couldn’t do, which included standing for prolonged periods of time.
Importantly, activities that are required as part of a job weren’t 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.
Banaszczky v Booker case study
In February 2016, the Employment Appeal Tribunal found in Banaszczyk v Booker that Mr Banaszczky’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 wasn’t disabled as his back injury didn’t have a substantial effect on his carrying out normal day-to-day activities, and ‘picking’ wasn’t a normal day-to-day activity.
The EAT eventually found that he was disabled, as large numbers of people in the UK are employed to do work involving lifting and moving heavy loads across a range of occupations. Therefore, work activities that are non-specialised and common across many occupations should constitute ‘normal day to day activities’.
Types of “disabilities”
Addictions to alcohol, nicotine or addiction to any 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 – 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.
After a string of absences and lateness, caused by depression and the medication Ms Wickers had been prescribed by her GP, her Director made the comments and suggested that she was likely to be dismissed. Ms Wickers resigned shortly after this implication.
The Tribunal found that the director’s approach was unsympathetic and they had failed to make reasonable adjustments.
In Sullivan v Bury Street Capital Limited, in 2020, the Employment Appeal Tribunal found that an employee who suffered episodes of paranoid delusions was not disabled under the Equalities Act. The EAT believed that his delusions were not long-term or likely to re-occur.
The EAT also found that Mr Sullivan’s employers (and colleagues) did not have actual or constructive knowledge of his disability at the time he said he was being discriminated against; so therefore could not make any reasonable adjustments in relation to his role as there were not aware of his illness.
Generally, stress caused by difficulties at work is unlikely to be a disability on its own, as it’ll have little or no affect on his/her ability to carry out normal activities; however, clinical depression and anxiety are likely to be a disability.
In City of York Council v Grosset 2016, Mr Grosset had been dismissed from his job as a teacher after showing 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 workload had greatly increased and he began suffering from stress; the EAT, and later the Court of Appeal, felt his impaired mental state arose “in large part” because of his disability. The employer didn’t have medical evidence when they dismissed him and made the decision that his misconduct was not linked to his disability.
Conditions that are not disabilities
Expressly excluded from the Equality Act are conditions such as exhibitionism, tendency to steal, tendency to set fires 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.
In November 2018 the EAT confirmed that a ‘tendency to steal’ does not meet the definition of disability, in Wood v Durham County Council. Mr Wood, who was employed as an Anti-Social Behaviour Officer, suffered from depression, post-traumatic stress disorder and associative amnesia.
The original ET and the EAT found that while his stress disorders met the definition of a disability, the behaviour for which he was dismissed was for a ‘tendency to steal’ and his dishonesty when answering questions.
HIV/Aids, Multiple Sclerosis and cancer
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) - but see below for the 2021 case update about cancer.
In 2018, the Employment Appeal Tribunal found that a ‘pre-cancerous’ form of skin cancer was a disability in Lofty v Hamis (t/a First Café).
Mrs Lofty was dismissed after a long period of sickness absence and failing to attend meetings about her absence. The original Tribunal agreed she had been unfairly dismissed but did not think she had suffered disability discrimination because she did not have a disability. She appealed and the EAT agreed with her, finding that she did have a disability within the meaning of the Equality Act as cancer cells were present; the Act only requires a diagnosis of cancer, it does not distinguish between whether the cancer is invasive, or what stage it has reached.
In Bennett v MiTAC Europe Ltd, in October 2021, the Employment Appeal Tribunal found that an employee with cancer was disabled from the date when they fell ill, and not from the date the cancer was actually diagnosed. The EAT said that an employer will have knowledge of disability because of the employee’s state of health and they can be discriminated against before diagnosis, if it is thought the diagnosis will arise at a later date. This judgement may mean that the duty to make reasonable adjustments may be triggered when an employee is ill but not yet diagnosed - so employers should consider what support can be given to an employee at an early stage.
Progressive conditions, like Motor Neurone Disease, are treated as a disability as soon as there’s any impact on daily activities that will have a substantial impact in the future.
The complications caused by obesity may be defined as a disability if they’re of sufficient duration (more than one year) and substantially impair the employee’s day to day activities.
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.
As diabetes can have a major effect on an individual’s 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 two diabetes by avoiding sugary food and drinks was not disabled (as this was not a medical treatment).
The menopause itself is not defined as a disability, but the physiological or physical consequences of going through the menopause can be a disability (if it has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities).
However, in May 2021 an Employment Tribunal, in Daley v Optiva, found that the symptoms of the menopause are a disability. 51 year old Daley had been experiencing menopausal symptoms and was fatigued and had problems with her memory and concentration which meant that she struggled to carry shopping bags, could not drive for long periods and was unable to socialise. She also had an underactive thyroid. The tribunal said that her condition was having a substantial adverse impact on her normal day to day activities and was long term.
Stammering and dyslexia
Individuals with severe cases of stammering or dyslexia can be accepted as having a disability.
It’s believed that about one in 10 people have some form of dyslexia which causes difficulties with reading and writing. However, memory, maths and organisational skills can also be affected. This may mean changes need to be made for dyslexic candidates at interview (when applying for work, seeking 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.
In February 2016, an employee (Kumulchew) with dyslexia won a discrimination case against Starbucks. Kumulchew worked as a supervisor at a Starbucks in Clapham, London. She was required to record refrigerator and water temperatures at specific times on a chart. She had already informed her employer that she was dyslexic.
After entering incorrect information, her employer accused her of falsifying documents, although her condition meant she had difficulties with reading and writing/recording numbers and words. 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.
The ONS estimate that over 1 million people have reported experiencing long COVID symptoms in the UK. Acas has published a guide to help Employers handle the associated sickness absence and return to work. The guide acknowledges that it is hard to say yet whether long COVID will be a disability, as it will usually be very fact-specific, but recommends making ‘reasonable adjustments’ to help workers who are suffering from it.
Two Scottish Tribunal judgements in 2022 had different results, each looking at the question of whether the employee’s long covid symptoms were likely to last 12 months or more:
- In Burke v Turning Point Scotland, the Tribunal found the employee was disabled under the Equality Act. When he was dismissed on ill health grounds he had been suffering from long Covid for 9 months, and could not return to his position as Caretaker at the charity, as his symptoms had a substantial adverse effect on his ability to carry out normal day-to-day activities (which included headaches and fatigue, joint pain, insomnia), and there was no certain prognosis for his recovery.
In Quinn v Sense Scotland, the employee failed to be classed as disabled under the Equality Act. This was because she had only suffered from Covid symptoms (fatigue, severe headaches and brain fog, joint pain) for two and a half weeks at the time of her dismissal (July 2021), and there was no evidence that her condition would develop into Long Covid and the symptoms last 12 months or more. She was however diagnosed with long Covid in September 2021, but this was after her dismissal.
How does an employer “know” if an employee is disabled?
The duty to make “reasonable adjustments” (see below) in respect of a disabled employee doesn’t arise if the employer doesn’t know (and couldn’t reasonably be expected to know) that the individual is disabled, or that he/she is likely to be placed at a substantial disadvantage because of the disability.
In many cases it will be obvious, i.e. there is actual knowledge, or it is implied from the circumstances, so there’s no dispute. However, in many cases (including mental illness) the situation is more complicated – an employer may not be aware of the depression at all (for example), or may know about it but is not aware that the effects of this are substantial and have lasted (or are likely to last) at least 12 months.
Employers are expected to ‘do all they can reasonably be expected to do’ to find out whether an employee is disabled which will involve making reasonable enquiries from the employee and seek medical opinions from the employee’s GP and an Occupational Health professional where possible.
Donelien v Liberata
In a 2015 case Donelien v Liberata the Employment Appeal Tribunal found that when an employer didn’t have constructive knowledge of an employee’s disability (i.e. they couldn’t reasonably be expected to know), they weren’t required to make reasonable adjustments. Ms Donelian had been uncooperative with Occupational Health and the EAT said it was difficult for Liberata to determine what she could and couldn’t do.
Lamb v The Garrad Academy
In 2019, in Lamb v The Garrard Academy, Ms Lamb suffered from depression and PTSD. The Academy accepted that Ms Lamb suffered from a disability, which it was aware of from February 2012, but said it had no knowledge that this was a long term condition (and so a disability) until it obtained an occupational health report in November 2012.
Ms Lamb had claimed the Academy did not make reasonable adjustments prior to November. The original Employment Tribunal agreed, but the EAT did not, saying that by July 2012 there was sufficient evidence available to the employer that Ms Lamb’s illness was or would be long-term, and therefore the employer had not made ‘reasonable’ (i.e. timely) enquiries.
In 2018, the Employment Appeal Tribunal decided that a police offer had been discriminated against for the possibility of being disabled in the future. The employee had some hearing loss, which would have disqualified her from being recruited into the police force, but she passed a ‘function’ test and was offered a job.
Later, when applying for a transfer to another force, she was rejected because her hearing level was slightly below the required standard and they had concerns she may eventually end up on restricted duties if her hearing deteriorated further. The EAT felt this was direct disability discrimination based on the perception that the employee may be disabled in the future.
Baldeh v Churches Housing Association
In 2019, the Employment Appeal Tribunal found that although the housing association did not know Baldeh was disabled when she was dismissed, they were given information about her disability at her dismissal appeal, and should have taken this into account.
Mrs Baldeh was dismissed after six months’ probation due to allegations about her communication methods and performance, and she subsequently bought a claim for disability discrimination saying her depression sometimes made her behave unusually and say inappropriate things.
The original tribunal found that because at the time of her dismissal the employer did not know she had depression, the employer could not have reasonably known about it. However, at the internal appeal against her dismissal, Mrs Baldeh had given the employer information about her mental health and its effects. The EAT said that the employer, although it may not have known about her depression when she was initially dismissed, they did, or should have, known she was disabled at the appeal stage; therefore they should have taken into account whether the behaviour that had led to her dismissal had arisen as a consequence of her disability, before deciding the outcome of her appeal.
In such a scenario, employers should be careful about confirming the dismissal and it may be appropriate to seek advice from an Occupational Health expert before confirming the outcome; the employer should also consider if any reasonable adjustments were available to be made.
Tesco Stores Ltd v Tennant
In 2020 the EAT found that an employee must demonstrate that their impairment had a long term effect at the actual time they alleged the acts of discrimination took place against them.
Ms Tennand was off sick because of depression from September 2016. In September 2017, she made an employment tribunal claim for disability discrimination, in relation to acts she said she had suffered since September 2016. Tesco appealed the ET’s original decision on the basis that she was not disabled at the time of the alleged discriminatory acts and the EAT agreed; it said the definition of disability had to be satisfied at the time of the alleged discrimination and not when the claim was actually submitted.
The Court of Appeal confirmed this in June 2021, when it found that the long-term effect of an impairment must be considered at the date of the alleged discriminatory act (in All Answers Ltd and Mr W and Ms R).
Under the Equality Act, if someone has a disability as defined by the Act, employers are under a duty to 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/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.
In May 2023 Acas issued new guidance and resources to help employers when handling reasonable adjustments relating to mental health, which you can see here.
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 six 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 didn’t agree to these counselling sessions and didn’t 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 for free on the NHS, and it was unreasonable for them to have to pay in view of the treatment’s limited prospects of success. The Employment Appeal Tribunal disagreed, querying 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 to medical treatment. The EAT disagreed, saying the sessions recommended weren’t 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 wasn’t 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?
Other forms of reasonable adjustments employers can make for their employees include:
- Reallocating part of the job a disabled person can’t do or swapping jobs with another employee
- Providing an appropriate piece of equipment to make the work less painful
- Redeploying 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.
The Environment Agency v Donnelly
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 overflow car park was an extra 10-minute walk away.
Donnelly claimed it was a reasonable adjustment to be allocated a car parking space in the main car park so she wouldn’t 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 moved 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.
South Staffordshire & Shropshire Healthcare NHS Foundation v Billingsley
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’s reasonable for the employer to make the adjustment; it’s not necessary for the employee to demonstrate the reasonable adjustment would be completely effective (in avoiding the disadvantage). It’s enough to show there is a chance the adjustment would work (to alleviate the disadvantage).
Is reducing hours a reasonable adjustment?
Secretary of State for Work & Pensions vs Higgins
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 decided his employer could limit the period to three months as there was a limit to the extent to which it’s reasonably practicable for employers to offer adjusted working arrangements.
However, the EAT said that at the end of the three 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.
Carreras v United First Partners Research
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 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 difficulty concentrating, focusing and working late. He worked eight-hour days on his return to work, and after some time, requested to work late once more. His employer assumed this request to mean he was capable of doing so.
Mr Carreras eventually formally told his Manager that he objected to working late, and after an argument , his manager informed him that if he didn’t like it, he could leave. Carreras resigned and claimed 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 wasn’t ‘required’ to work late. The EAT, and later the Court of Appeal, disagreed, saying there was an ‘expectation or assumption’ that employees would work long hours.
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.
The Home Office v Kuranchie
In The Home Office v Kuranchie 2017, Ms Kuranchie, who has dyslexia, asked to reduce her hours, to which her employers 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 a medical report of the employee had suggested this. This case confirms that it’s not up to the employee to suggest adjustments; that duty falls on the employer.
During a redundancy situation
Disabled workers should not have their disability-related absence taken into consideration by employers when managing performance issues 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 exercise according to the disability.
In September 2014, in Dominique v Toll Global Forward Ltd, 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 December 2023, in Hillaire v Luton Borough Council, the Council were restructuring and Mr Hillaire was unable to attend an interview for a job in the new structure, saying he was too unwell. There were 13 other candidates to be interviewed for the same role. Mr Hillaire was later made redundant and he bought a claim to an Employment Tribunal to say his employer had failed to make reasonable adjustments when they invited him to interview for the new role, and they should have given him a role in the new structure without an interview (‘slotted’ him into a role). The original ET said that he could have attended the interview if he had wanted to, so he was not placed at a disadvantage because of his disability. Hilaire appealed this and the Employment Appeal Tribunal disagreed with the ET, saying the tribunal had failed to consider his ability to participate fully in the interview (rather than solely his ability to attend it). However, the EAT agreed that the reason he did not attend the interview was not related to his disability. The EAT also considered whether ‘slotting’ him into a role would have been a reasonable adjustment for him - but they felt it would have not. It would have disproportionately disadvantaged the other employees, by giving him an advantage, which made such an adjustment unreasonable. This case makes clear that it is not only the need of the disabled person that needs to be considered; the full circumstances and impact on others of any adjustment need to be considered too.
Where an employee is unfit for work
In January 2015, the Employment Appeals Tribunal in Doran v Department for Work and Pensions considered a situation in which an employee has a disability, but are certified by a Doctor as unfit for any work (with no indication of when the employee might be able to return to work). They concluded 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.
Griffiths v Secretary of State for Work and Pensions
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, not 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.
DL Insurance Services v O’Connor
In DL Insurance Services Ltd v O’Connor, in June 2018, the Employment Appeal Tribunal agreed that the employer had discriminated against the employee when it issued her with a written disciplinary warning concerning her attendance levels. Mrs O’Connor had been employed since June 2005 and in 2009 asked to work flexibly as her illness was having an effect on her work, which the Company allowed.
The Company’s sickness absence policy said that disciplinary action could be taken when certain amounts of sickness absence had been reached and in these circumstances the payment of company sick pay would be stopped during the period of the warning.
From 2013 onwards her sickness absences were in excess of the sickness policy threshold. Eventually, she was invited to a disciplinary hearing and received a written warning lasting for 12 months. This stopped her company sick pay and she made a claim for disability discrimination.
The original Tribunal felt that discrimination arising from disability had occurred as the warning placed O’Connor at risk of further disciplinary action and of losing sick pay. The EAT agreed with this, saying the Company had not followed its own procedures by consulting with occupational health or obtaining medical advice before taking disciplinary action. The person hearing the disciplinary also did not talk to O’Connor’s manager about the impact of her absence on her team or on her own work. The EAT felt that as O’Connor was genuinely ill she could not avoid her absences – and the Company could not explain how giving her a disciplinary warning could improve the situation.
Redeploying an employee
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.
G4S Cash Solutions UK Ltd v Mr Powell
In G4S Cash Solutions UK Ltd 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 disability was a reasonable adjustment. Mr Powell was redeployed to a new role but kept his old terms and conditions, assuming this to be 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.
Makuchova v Guoman Hotel Management (UK) Ltd
In 2015, the Employment Appeal Tribunal said, in Makuchova v Guoman Hotel Management (UK) Ltd, that an employer isn’t required to create the ‘ideal’ job for a returning employee. Makuchova was a hotel supervisor who said her employer had failed to make reasonable adjustments 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’ve 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 employers to make adjustments is to do what’s reasonable, not necessarily to accept what the claimant thinks is reasonable.
J Frost v Retail Design Solutions Consultancy Ltd
In July 2018, in J Frost v Retail Design Solutions Consultancy Ltd, an Employment Tribunal found that moving an employee to a position where her progress would be capped was disability discrimination.
Miss Frost worked as a senior designer in the branding team. She had an anxiety disorder that her managers knew of, but which she felt able to control and the job helped her do this. In 2016 a new member of staff, Froud, became Frost’s line manager, but their relationship was not good as he made her anxious.
Because of this the branding team was put under new management and he transferred Frost’s role to the store planning team, where she would have six employees to manage.
Frost was unhappy with this and submitted a formal grievance. During the grievance investigation it was made clear to Frost that her career progression in the company would depend on her managing her anxiety condition. The Tribunal found that as, the Company had known about her condition from the start of her employment, the decision to move her role (and effectively cap her career progression) because of her anxiety arose as a result of her disability.
The Company had also failed to make any reasonable adjustments (that Frost had suggested during the grievance process, e.g. allowing colleagues to drive and attend meetings with her, or holding discussions with her ahead of meetings, which would allow her to reduce her anxiety) and had therefore indirectly discriminated against her. Her claims for direct discrimination, harassment and victimisation failed.
In Aleem v E-Act Academy Trust the EAT found that not continuing to pay an employee at her previous higher pay (when she was re-deployed to a lower paid role) was acceptable once the new role became permanent, as she had been informed about the pay cut. Mrs Aleem claimed that by not maintaining her original higher salary her employer had failed to make a reasonable adjustment for her disability - the EAT disagreed and said it will not always be the case that maintaining a previous higher pay rate would be a reasonable adjustment. The cost of the adjustment and whether the employee had been told about the adjustment play an important part.
Dismissing a disabled employee
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.
O’Brien v Bolton St Catherine’s Academy
In O’Brien v Bolton St Catherine’s Academy, in October 2017, the UK Court of Appeal looked at whether the employer was discriminating against O’Brien when they dismissed her after taking long term sick leave of more than 12 months. O’Brien was a teacher who had been assaulted by a pupil in March 2011 and suffered serious stress and went off sick.
She unsuccessfully tried to return to work in December 2011 and remained off sick until January 2013, when she was dismissed. At her resulting appeal she produced a ‘fit for work’ note and medical evidence. The panel upheld the dismissal as it felt the medical evidence was inconsistent and the prognosis was uncertain for her return. O’Brien claimed disability discrimination.
The Court of Appeal felt that it was unreasonable of the school to disregard the medical evidence given at the appeal that she was fit to return to work – she had already been absent for 15 months, therefore it was unreasonable of the school not to wait a few months longer to obtain and assess its own medical evidence. The school should have provided evidence of the impact of her absence on its business but hadn’t done so.
The CoA felt this constituted disability discrimination.
In All Answers Ltd v Mr W and Ms R, in June 2021, the Court of Appeal ruled that the question of whether someone is disabled or not, by determining the long term effect of a disability, must be considered at the date of the alleged discriminatory act.
Discrimination and misconduct
In Rochford v WNS Global Services, this case finally came to the Court of Appeal in January 2018. Mr Rochford had been off sick for a long period of time with a bad back (after major spinal surgery; all parties agreed it was a disability). WNS was happy for him to return to work, but because of the length of his absence, required him to return to work in a reduced role (but with the same job title and salary) to see if he was able to return to work fully.
Rochford felt that this was discrimination as was the fact that WNS didn’t give him a fixed timescale for resuming all his normal duties, and as a result he refused to carry out any work and raised a grievance (which was dismissed). Several disciplinary warnings followed, but nothing changed and eventually, in April 2013, Rochford was summarily dismissed for failing to comply with a reasonable management request.
The Court of Appeal were looking at whether it could be fair to dismiss an employee for refusing to participate in discrimination against him.
The original Employment Tribunal found that WNS had no medical justification for not allowing Rochford to come back to his full role immediately (or for not giving him a timescale to return to his full role) – therefore he had been discriminated against. But the ET said this didn’t give him the right to refuse to do his job; Rochford argued that if he had done his job, this would be seen as ‘accepting’ his employers’ treatment of him.
The Employment Appeal Tribunal and the Court of Appeal also felt that this didn’t legitimise his refusal to do any work, as it was clearly within his capability (and he was receiving full pay) – refusal to do any work, and following the disciplinary procedure with clear warnings, did amount to gross misconduct, so Rochford lost his unfair dismissal claim.
The Court of Appeal felt that WNS were trying to do the right thing for Rochford, but, there was no medical evidence that Rochford’s physical condition required any such adjustment (the reduced role) – therefore WNS’s requirement for him to work in a reduced role, which was clearly related to his disability, could not be justified.
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 disability.
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.
Price v Action-Tec Services
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 for 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 seven 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 would under-perform.
Bainbridge v Atlas Ward Structures Ltd
In Bainbridge v Atlas Ward Structures Ltd the same principle 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 doesn’t impose a duty on an employer to make reasonable adjustments for an employee who acts as a carer for someone who’s disabled (associative), and the Court of Appeal confirmed this in June 2014.
Truman v Bibby Distribution
In July 2015 in Truman v Bibby Distribution Ltd an employer who suddenly 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; 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 to do more caring now as his wife was starting her own business. He was dismissed one day before he had completed one year’s service (when he would have been entitled to benefit from 18 weeks 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”.
Follows v Nationwide Building Society
In September 2021 an Employment Tribunal upheld a claim of indirect associative discrimination in relation to Mrs Follow’s mother who she cared for. This is the first time that a Tribunal had allowed this - under the Equality Act 2010, indirect discrimination can only apply to those who personally have a disability; here they widened the interpretation to include those who are associated with someone who has a protected characteristic, following a recent European Court of Justice decision.
As this was an ET decision (unless it is appealed) is not binding on other future ET’s. Although the UK has now left the EU, ET’s must still continue to consider EU laws, although the Court of Appeal and Supreme Court can depart from EU law in the future if they consider it appropriate.
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.