Disability discrimination: all about the case
A look at the increasing difficulty of advising on whether a reasonable adjustment must be made or whether something amounts to disability…
A series of recent cases on disability discrimination has reminded me of what I was taught at university. As idealistic students, we would argue in tutorials that each case should be decided correctly on its facts, while our sage tutor would tell us that what people really wanted was certainty in the law.
I increasingly understand his point when I am struggling to advise employers on whether a reasonable adjustment must be made or whether something amounts to disability discrimination. In deciding a number of recent claims, the Employment Appeal Tribunal has given Judgments which may appear correct on the facts, but which highlight how increasingly difficult it is to advise with any certainty in this area.
Is diabetes a disability?
This uncertainty starts with the definition of what is a disability, as considered in the recent EAT decision in Metroline Travel Ltd v Stoute. The key question was whether type 2 diabetes was a disability, to which the EAT’s answer was that it wasn’t in this case, but could be in others.
The claimant was a bus driver who was dismissed for misconduct after he arrived late on the day in question and claimed this was because he was suffering from diarrhoea (the Judgment also tells us he had a chequered employment history, which included diverting his bus to buy some chicken kebabs). The issue arose as to whether the driver’s type 2 diabetes – which he controlled through changes to his diet, such as avoiding sugary drinks – was a disability.
To be a disability, the claimant’s condition needed to have a long-term substantial adverse effect on his ability to carry out normal day-to-day activities.Even if it did not, the Equality Act 2010 provides that a condition is still to be treated as having a substantial adverse effect if:
- the employee is taking measures to treat or correct it; and
- but for that, it would be likely to have that effect.
That provision makes sense if a particular medication is stopping a serious ill-health event, providing the individual with appropriate disability discrimination protection. But if an individual controls the diabetes through diet, so that the condition’s day-to-day impact is minimal (or non-existent), does a tribunal have to ignore the dietary management and decide what likely effect the diabetes would have without it?
This EAT judgment is worded in fairly strident terms, perhaps because it was delivered by a Judge who is also diabetic and who clearly had a deep and personal understanding of the issues being considered (as well as a strong view). The EAT concluded that abstention from sugary drinks was neither a substantial adverse effect nor the type of treatment which should be ignored when considering the condition’s effect.
However, this sensible decision leaves some complex issues. The EAT concluded that a medicated diabetic would be treated as someone with a disability, but this claimant would not. Moreover, while the Judgment shows that not everyone suffering from type 2 diabetes controlled by diet should be regarded as disabled, it leaves open the possibility that some such type 2 diabetics will be.
In reaching the decision, the Judge made a comparison with other conditions where diet averted significant adverse effects, such as nut allergies. If avoiding nuts was a measure, and an individual’s condition was to be assessed as if they did not avoid nuts, most people with a nut allergy would be disabled. The EAT understandably decided that cannot be the case. It did acknowledge that in some cases a particular diet may be a measure which is to be ignored when considering the likely adverse effects of a disability. However, abstaining from sugary drinks is just not sufficient for this provision to apply.
This leaves employers and their advisers with a difficult question if they face a similar case. While Mr Stoute’s claim failed, others may be held to have a disability if they can demonstrate that necessary dietary or lifestyle changes have a greater impact than avoiding sugary drinks does. Where the line of dietary importance is to be drawn is difficult to know.
Justifying less favourable treatment?
In Land Registry v Houghton, the Land Registry had a policy that employees were ineligible to receive a bonus in a financial year if they had received a formal warning for sickness absence. The EAT had to consider the application of this policy to employees who had a disability.
Unsurprisingly, the EAT concluded that where a warning for sickness absence resulted in the non-payment of bonus, this was unfavourable treatment in consequence of the disability which had led to the absence. Without the disability, each of the claimants in this case would not have run up the sickness absences which led to the warning and the bonus not being paid.
More contentiously, the EAT concluded that the Tribunal had been perfectly entitled to find that the employer was not justified in its approach to non-payment of the bonus. It found that while the bonus scheme’s aim of acknowledging employees’ contribution to corporate achievements and encouraging and rewarding good attendance was appropriate and legitimate, the employer’s method of achieving it was not proportionate. In particular, there was no discretion for a manager to give the warning but still enable the employee to receive a bonus. Nor was account taken of subsequent performance in determining whether the individual’s attendance had improved.
This Judgment introduces a huge degree of uncertainty into identifying when another Tribunal will hold a similar scheme to be proportionate (and therefore lawful). If some flexibility in applying such a scheme is required for loss of bonus to be justifiable, where does such flexibility need to start and stop to be proportionate and does it matter whether such flexibility is ever applied in practice?
Providing information to sick employees
Chawla v Hewlett Packard involved an employee who had been absent from work due to stress (which was a disability) for a number of years, for many of which he received payments under the employer’s Permanent Health Insurance scheme. During that time, his access to the employer’s email and intranet systems was withdrawn. As a result he wasn’t informed about his right to join one share purchase plan, was delayed in joining another and lost the right to exercise some other share options during some key dates.
His argument was that it was a reasonable adjustment for his employer to ensure that he was informed in a timely manner about developments to his terms and conditions. He was successful in the Tribunal and that finding was upheld by the EAT.
Employers often struggle with absent employees’ access to systems. Where an employee is absent with stress-related illness, what is the right approach? Removing the need for them to receive emails from clients may well in itself be a reasonable adjustment and it may assist their recovery. Yet take such access away and the employer can face claims.
The Tribunal and the EAT accepted the employer’s reasons for closing down access to its systems for those on long-term sickness absence. In particular, they accepted its concern that sensitive information could fall into third-party hands. However, they held that there was no reasonable explanation for the employer’s failure to tell the employee about things which still affected him and his terms and conditions. It would have been a reasonable adjustment to keep him informed about these matters in another way.
This identifies a good practical step which employers need to take for employees on long-term ill-health absence whose system or e-mail access is removed. However, many absent employees with a stress-related illness will, in practice, ask their employer not to contact them at all for a period. Does an employer send weighty correspondence about terms and conditions to that employee or not?
A separate issue which the EAT needed to consider was an email sent to Mr Chawla which stated that the rules around certain stock options were different if he did not have the mental capacity to make decisions at a particular time. The intention behind this wording was to provide information to Mr Chawla about a possible approach which might have benefited him. However, he alleged this was harassment.
The Tribunal and the EAT were required to consider whether the e-mail had the effect of violating Mr Chawla’s dignity or creating an adverse environment for him and, if so, whether this was reasonable in all the circumstances. Technically, the lack of intent from the sender did not stop the e-mail amounting to harassment. However, the EAT highlighted (with reference to Richmond Pharmacology v Dhaliwal)that the same remark may carry a very different weight if it is evidently innocently intended than if it was intended to cause offence (or more precisely to produce the proscribed consequences). Accordingly, the EAT concluded that the Tribunal was entitled to decide that such an email was not harassment in this case because the sender was trying to be helpful.
This is sensible law and a good distinction on the facts. However, it is difficult enough for an organisation to be sure that a sender’s intentions are clearly innocent, let alone to know whether a future tribunal might determine the sender’s motives in this way.
An organisation’s knowledge
Similar issues arise with knowledge of disability. The duty to make reasonable adjustments does not arise where an employer does not know about the employee’s disability (or that they are likely to be placed at a substantial disadvantage by the provision, criterion or practice applied). However, for the exclusion to apply, the Equality Act 2010 also requires that the employer ‘could not reasonably be expected to know’. For reasonable adjustment arguments, the timing of when the employer could reasonably be expected to know about the employee’s disability can sometimes be very important.
In Donelien v Liberata UK Ltd, the EAT considered the case of an employee who was rarely at work and whose attendance was erratic and occasional. The Judgment tells us that she attended work as and when she thought appropriate because she considered she should have autonomy over managing her stress in her own way, without telling her employer that she was not turning up. Key to the case was when the employer ought to have known she had a disability. This disability was alleged to be stress, depression, anxiety, hypertension, asthma and respiratory problems, dyspepsia and migraines.
The EAT confirmed that this test places the legal burden on the employer to show that it was unreasonable for it to have the required knowledge at the time. In this case, Liberata was advised by its occupational health team that the claimant’s condition did not amount to a disability. We know from Gallop v Newport City Council that an employer must not fall into the error of uncritically accepting views expressed by an occupational health doctor. Here, Liberata relied on its occupational health advice, and its own view of it, to argue that it did not have the required knowledge and that it could not reasonably have been expected to know about the employee’s disability at the relevant time.
The EAT upheld the Tribunal’s decision that Liberata did not have the required knowledge at the relevant time. In doing so, it acknowledged that the employer faced a number of issues, including that:
- the claimant’s conditions were erratic and inconsistent;
- it was difficult to disentangle what she could not do because of a disability and what she simply would not do; and
- the advice it was receiving from its occupational health team chimed with its own experiences, which seemed to be that while the claimant had a number of health difficulties, these fell short of a disability.
On the facts as found and, given the claimant’s circumstances, the EAT’s Judgment seems correct. However, it is difficult for employers to know whether they can rely on advice from a medical professional that an employee does not have a disability. This EAT said Liberata was able to do so, but in Gallop the implications for the employer of doing so was that it was found to have acted unlawfully. What the EAT explained in Donelien was that “every case, particularly involving disabilities which vary from person to person, is bound to turn upon its own particular facts”.
A Tribunal must look for evidence that the employer has taken its own decision. This decision must show it has not approached a doctor’s views uncritically, but can (and indeed probably should) in general show great respect for that doctor’s views. If an employer strikes the right balance between respect and criticism, then accepting the view in a medical report that someone is not disabled will mean the duty to make reasonable adjustments does not apply. Get the balance wrong and that same decision may be unlawful.
In this case, in the EAT’s words, the Tribunal found that “the employer, taken overall, could not be expected to have done more. The test is not set at that height, which is a counsel of perfection. The test is one of reasonableness. The Tribunal applied it. We cannot say that its answer was wrong”.
Where does this leave us?
The problem with all disability cases is that the impact of each person’s condition will be unique to them, and the way that condition affects their role and their employment will always be case-specific. Unlike any other area of discrimination, lawful action is all about a bespoke approach to each individual and their circumstances. While that has always been the case, these recent EAT Judgments suggest that identifying the correct approach is getting more and more difficult. Advice on what is right should not depend on the view of the Employment Judge (or the panel) on a particular day in the Tribunal, but for disability cases it seems that this is increasingly the case.
The decisions at a glance
- Metroline Travel Ltd v Stoute: type 2 diabetes that the claimant could manage through dietary changes such as avoiding sugary drinks was not a disability that had a long-term substantial adverse effect on his ability to carry out day-to-day activities.
- Land Registry v Houghton: a scheme whereby employees were ineligible for a bonus if they had received a formal warning for sickness absence resulted in unfavourable treatment of employees who had a disability. The employer’s approach could not be justified and was not proportionate.
- Chawla v Hewlett Packard: an employee on long-term sickness absence was not informed about developments to his terms and conditions after his access to the employer’s email and intranet systems was withdrawn. This was discriminatory because it would have been a reasonable adjustment for the employer to keep him updated in another way.
- Donelien v Liberata UK Ltd: the employer could not reasonably have been expected to know that the employee had a disability when it dismissed her. The occupational health advice that it received chimed with its own experiences and it had to take only reasonable, not perfect, steps to find out if she had a disability.
Phil Allen is a Partner in the Weightmans employment and pensions team based in our Manchester office (firstname.lastname@example.org).