It is unlawful for employers to discriminate (directly or indirectly) against workers, employees or job applicants who are disabled under the Equality Act 2010. The Equality Act also gives protection against discrimination ‘arising from’ disability as well as placing a duty on employers to make reasonable adjustments where a disabled worker or job applicant is placed at a substantial disadvantage.
In this article, we look at three recent cases which (although they are at Employment Tribunal level only and are therefore not binding law) provide useful examples of some of the issues that employers should be aware of in relation to discrimination arising from disability and the duty to make reasonable adjustments.
Powell v Secretary of State for Work and Pensions
Ms Powell was a long serving employee at the DWP. She had frequent time off work due to ill-health, and some of her absences were related to disability. Under the DWP’s absence management procedures, formal action would be instigated where an employee had 8 days of absences in a 12 month rolling period. The DWP did adjust the trigger point for Ms Powell, so that action would only be taken once she reached 12 days’ absence.
Her absences went over the 12 days (by a few days) and she was subsequently dismissed, despite the DWP’s procedure stating that the decision to dismiss a disabled person should not turn on whether they had gone a day or two over the trigger point.
Ms Powell brought claims for unfair dismissal and discrimination arising from disability. The Employment Tribunal held that Ms Powell was discriminated against and should have been given more time to improve her attendance. She also won her unfair dismissal claim, and was awarded over £30,000 in compensation.
In this case it certainly sounds as if the DWP were much too quick to dismiss a long-serving disabled employee. It is always important to consider a fair procedure as well as any potential reasonable adjustments. Also, reasonable adjustments are not just in the sense of working hours or special equipment, they can include making adjustments to internal procedures too.
Corry v Merseyrail Electric 2002 Ltd
Mr Corry suffered from epilepsy, which he stated on his CV, and he had applied for a job at a train station. Mr Corry was offered the job, but the offer was conditional on him passing a medical. The medical concluded that Mr Corry was fit to work – but he should not work alone, or be allowed to work trackside.
The HR department at Merseyrail did consider what potential adjustments could be made, however as 90% of the job involved working alone or trackside they concluded that it was not financially viable or practical for them to take on Mr Corry and the job offer was withdrawn.
Mr Corry brought a claim for discrimination arising from disability and failure to make reasonable adjustments, however both claims were dismissed. The Tribunal found that withdrawing the job offer was a proportionate means of achieving a legitimate aim (which in this case was ensuring the safety of employees and the public) and the suggested adjustments (which included employing a colleague to accompany Mr Corry) were not reasonable in the circumstances.
This case is a useful example of when the adjustments being sought by a disabled person go beyond what is reasonable.
Shields v Surrey and Sussex Police
Mr Shields was a police marksman who suffered from hearing loss following an inner ear infection. He underwent annual hearing tests and had successfully undertaken his role for 12 years. However, a new minimum hearing level was introduced. Mr Shields subsequently failed the new hearing test and was removed from firearms duties. The police force argued that it would be dangerous for him to be in the field, in case he mis-heard an instruction of “shoot” or “don’t shoot”, but Mr Shields said that this had never been an issue in previous years.
Mr Shields brought claims for discrimination arising from a disability, indirect discrimination and a failure to make reasonable adjustments (including a failure to allow him to take the hearing test used by the London Fire Service).
Mr Shields’ claims for discrimination arising from a disability and indirect discrimination failed, however the tribunal held that there had been a failure to make a reasonable adjustment, in that he should have been allowed the opportunity to take the hearing test used by the London Fire Service, which was the best available, and there were sufficient operational similarities between the police and the fire service.
As these cases show, it can sometimes be difficult to assess whether taking a particular course of action could amount to discrimination and, if in doubt, it is always best to take advice – we have years of experience of advising on ill-health and disability issues and would be happy to help.
We are experienced at advising on disability issues. If you would like to talk through a situation you are dealing with, or if you need advice on any aspect of employment law, please contact any member of the Pure Employment Law team (01243 836840 or [email protected]).