Disability Discrimination Act and Impairment

Following intensive campaign for the introduction of widespread civil rights legislation for disabled people, the government introduced the Disability Discrimination Act 1995 (DDA). The Act protects both employees and job applicants (s68) and has been amended by SI 2003/1673 to give effect to the relevant parts of Council Directive 2000/78/EC.

In this scenario, it could be that there has been an act of disability-related discrimination or possibly discrimination due to failure to make reasonable adjustments. Before we examine this, though, it is necessary to determine whether Alice has a disability to discriminate against. To fall within the Act, a person must have a disability (s1(2)) or have had a disability (s2). A disability is defined as a ‘physical or mental impairment, which has a substantial and long-term adverse effect on the person’s ability to carry out normal day-to-day activities’, s1(1). There is no definition of physical impairment but Sched 1,para 1(1) defines a mental impairment.

The word ‘impairment’ is to have its ordinary and natural meaning and may result from an illness or consist of an illness. The onus is on the employee to show an impairment. [1] Where the effects of the disability are clear, medical diagnosis of the cause may not be necessary, as in Millar v Inland Revenue Commissioners [2] .

Here, it is possible that Alice has a physical impairment since we know she suffered a brain haemorrhage which the doctors have put down to previously undiagnosed hypertension. The fact that she has had surgery, rehabilitation and has been prescribed medication supports that. Still, since there is no definition of what constitutes physical impairment, it is difficult to determine whether a brain haemorrhage and hypertension would fall under this category and, ultimately, it will be a matter for the tribunal to decide. The EAT emphasised this in Vicary v British Telecommunications plc [3] and Abadeh v British Telecommunications plc [4] and said that medical evidence must not take over the tribunal’s role.

It is worth noting that it would be wrong for an employment tribunal to substitute its own assessment of medical evidence for that of the employer in a disability-related unfair dismissal case- Heathrow Express Operating Company Ltd v Jenkins (unreported, EAT, 9 February 2007). It is, therefore, difficult to determine here whether Alice does indeed have a disability as a result of the brain haemorrhage and hypertension, especially as we are told that she’s been certified as fit to return to work, but this will be a matter for the employment tribunal.

Presuming that Alice does suffer from an impairment, we would need to determine whether there is a substantial effect and in order to do so, it is necessary to consider the impact that the impairment has on normal day-to-day activities and to what extent. The term ‘substantial’ is defined in the guidance issued under s.2 as meaning more than minor or trivial. This is undoubtedly a lower threshold than might have been expected from the term. In Kapadia v London Borough of Lambeth [5] , the Court of Appeal held that recognised medical evidence on the degree of effect is generally conclusive. A person is not regarded as disabled if suffering an impairment which merely limits exceptionally strenuous activities or only specific kinds of job.

What is ‘normal’ may be described as anything that is not abnormal or unusual. It does not depend upon whether the majority of people do it; there may be some activities that only women do and the fact that men do not do them does not stop them being ‘normal day-to-day activities’ [6] . The DRC Code of Practice gives guidance as to what constitutes ‘day-to-day’ activities [7] but this guidance is intended to be illustrative and not exhaustive. It is for the employment tribunal to decide individually, rather than relying too much on this or medical opinions. [8]

The list of capabilities is contained in Sched 1 and includes inter alia mobility, manual dexterity, physical co-ordination etc. Here, Alice’s potential impairment may have an adverse affect under Schedule 1, Section 1, para 4(1)(c) and (e), since her tiredness affects her physical co-ordination in her ability to lift heavy things. These include the conveyancing files which can arguably be classed as everyday objects. It may also be so under (a) since we’re told that her balance and mobility are affected. Also, inability to use a basic form of public transport is likely to amount to a substantial effect on mobility and, here, we are told that Alice finds it difficult to use public transport [9] . In addition, her impairment may be taken to affect her ability to carry out normal day-to-day activities under (f) since it has an affect on her speech, which has become slightly slurred. It might need to be proven, though, that as a result of her speech, others are finding it hard to understand Alice. The inability to press buttons, keyboards or keypads or an ability to do so only more slowly than is normal for most people might illustrate a para 4(1)(b) effect. It may be argued that while typing is a ‘specialised’ activity, it still involves a normal day-to-day activity (para D9 Disability Guidance Notes (DGN)). However, since we know that typing is part of Alice’s job, her ‘significantly slower’ typing speed now might be considered standard for normal people and may not come under para 4(1)(b).

In Goodwin v The Patent Office [10] , the employment tribunal had held that the effect of his impairment was not substantial and he was consequently not disabled. The EAT disagreed and said that the proper approach was to focus on things Goodwin could not do or could only do with difficulty and not on things he could do, an approach also adopted in Leonard Southern Derbyshire Chamber of Commerce [11] and Ekpe v Commissioner of Police of the Metropolis [12] . Here, Alice seems to have more difficulties in carrying out normal day-to-day activities and there is little she can do without difficulty, as she seems to be affected in more ways than one and, had it not been for her possible impairment, she would not be falling behind on her work and consequently prompting Ben to threaten to dismiss her. In general, the fact that it takes her longer to carry out these activities is a factor which will be taken into account (para B2 DGN).

When acknowledging whether an employee is disabled, a tribunal should not compare the performance of the employee with that of the average person. The comparison should be between what the person can actually do and what that person would be able to do without the impairment- Paterson v Metropolitan Police Commissioner [13] . So, the fact that Alice is behind on her work and is reluctant to answer the phone which is surely a big part of her job, points to the fact that the effect stemming from her ‘impairment’ is substantial. Also, the fact that she is constantly tired may have cumulative effects, resulting in an overall substantial adverse effect (para B4 DGN).

A person who claims that if medical treatment were to cease he would suffer from a disability can claim protection even though he is not actually suffering from such a disability- DDA 1995, Sched.1, para.6(1). However, he must produce evidence, not merely speculation, as to the effect of the termination of medical treatment- Woodrup v London Borough of Southwark [14] . Alice is suffering from certain effects despite the fact that she has been prescribed medication to control the hypertension so it is likely then that if medical treatment was to cease, the effects of the ‘disability’ would be even more substantial.

The effect must be long-term. ‘Long term’ means it must have lasted 12 months, be expected to last 12 months, or the rest of the person’s life (Sched 1, para 2). According to the EAT in Cruickshank v Vaw Motorcast Ltd [15] , the material time at which the assessment whether someone is disabled is to be made is the time of the alleged discriminatory act. Alice suffered the brain haemorrhage six months ago so there’s no denying that Ben knew about her ‘disability’ at the time that he told her that she would be dismissed if he didn’t see an improvement within three months.

However, they also held in Greenwood v British Airways plc [16] , that in deciding whether the effect is long-term, the employment tribunal is entitled to take into account adverse effects up to and including the employment tribunal hearing (also see Heatherwood v Wrexham Park Hospitals Trust v Beer, unreported, EAT, 14 June 2006).

So, if three months on Alice’s disability still has a substantial effect on her abilities to carry out her job then that will amount to impairment lasting nine months but considering Alice has three months from the discriminatory act within which she may bring proceedings for disability discrimination, it is possible that the impairment is likely to last for 12 months. Either way, it could be argued that it is more likely than not that Alice’s ‘impairment’ will last for another six months or longer, given that she is affected in various ways, despite the fact that she’s been told that her speech will gradually improve.

If we presume that the effects of the brain haemorrhage and hypertension are long-term and that Alice does, indeed, have a disability, we must now turn to the act of discrimination. It is possible, though in no way certain, that Ben is guilty of disability-related discrimination. Whether this is the case would depend on whether Alice does, in fact, suffer from a disability and what exactly had been said by Ben. By s3A(1), an employer discriminates against a person with a disability if, for a reason which relates to that person’s disability, he treats that person less favourably than he would treat a person to whom that reason does not or would not apply and he cannot show that the less favourable treatment is justified. In Heinz Co Ltd v Kenrick [17] , the EAT said that it was not necessary for an employer to know about the person’s disability for the less favourable treatment to be disability-related and in Clark v Novacold [18] , the Court of Appeal stated that in the case of absence, the comparator was a non-disabled person who had had the same length of non-disabled sick absence.

However, the recent House of Lords decision in London Borough of Lewisham v Malcolm [19] has turned both Heinz and Clark on their heads. Although a housing case, their Lordships have decided that for s3A(1) to apply, an employer needs to know about the person’s disability before he can discriminate for a reason related to that disability. It is assumed that Ben knows of Alice’s potential disability, given that she was granted time off for surgery and rehabilitation. Their Lordships also held that Clark was decided per incuriam, and that the correct comparator under s3A(1) is a non-disabled person with the same length of absence as the applicant.

Here, there may be disability-related discrimination, as Ben is threatening to dismiss Alice if her performance, which comes as a result of her ‘disability’, doesn’t improve within three months. The case of Malcolm may have reduced the scope for bringing disability-related discrimination claims since the comparison here would be with a non-disabled employee who has also been falling behind on her work. Since such an employee would presumably also have been dismissed, less favourable treatment is not apparent and the claim fails.

Also, it is a defence if the employer can establish that the less favourable treatment is ‘justified’. The ‘justification defence’ means that if, for example, there are good business or health and safety reasons as to why a company would be treating an employee less favourably relating to a disability, then tribunals can conclude that any claim for disability-related discrimination is unsuccessful. In Baynton v Saurus General Engineers Ltd [20] , the EAT suggested justification required a ‘balancing exercise’ between the interests of the employer and the disabled employee. In that case, the fact that the disabled employee was unable to do his job was insufficient, as the employers had not warned him of the risk of dismissal or found out the latest medical position before dismissing him. Here, although Alice was given warning about potential dismissal, she is still capable of doing her job, just not as effectively and there is nothing to indicate whether Ben confronted her about her medical position and how it may affect her performance. Thus, it is difficult to say whether or not Ben has a defence of justification.

Still, it won’t affect his statutory duty to make reasonable adjustments. If Alice does have a disability, there may be a duty under s.3A(2) and s.4A of the DDA on Ben’s part since he presumably knew of any potential disability. This duty arises where a disabled person, including applicants as well as employees, is placed at a substantial disadvantage compared with non-disabled people because of some provision, criterion or practice applied by the employer or because of any physical feature of the premises. The employer is under a duty to take such steps as it is reasonable to take in all the circumstances to prevent this. The fact that Alice is falling behind on her work, prompting Ben to consider dismissal is arguably a substantial disadvantage.

The provision enabling an employer to justify a failure to comply with this duty was removed with effect from 1 October 2004. Examples of steps which may need to be taken are contained in Section 18B(2) of the DDA 1995 and include making adjustments to premises, allocating some of the disabled person’s duties to another person, transferring the disabled person to an existing vacancy, assigning him or her to a different place of work or training and acquiring or modifying equipment. The question of whether an employer had made sufficient arrangements in the light of their knowledge is one of fact for the employment tribunal. [21]

Section 5 of the Code of Practice: Employment and Occupation contains extensive guidance about this particular duty and the extent of the duty depends on the circumstances of the disabled person. In some cases it will be necessary for an employer to take a combination of steps bearing in mind that, the aim of making the reasonable adjustment is to enable the disabled employee to remain in their job if possible. What is reasonable will depend on the individual circumstances of the case but section 18B(1) sets out criteria for reasonableness, such as the effectiveness of the step in preventing the disadvantage, the practicability of it, the extent of disruption caused, the size of the undertaking and the availability of financial assistance, through the Access to Work scheme, for instance.

Cost is also a very important factor in establishing the reasonableness of the adjustment. The Code indicates that it would be reasonable for an employer to spend at least as much on an adjustment which would enable it to keep a disabled employee as might be spent on recruitment and training a replacement. If an adjustment costs little and is not disruptive it will be a reasonable adjustment to make. Similarly, a costly adjustment would be seen as reasonable if the employer has substantial financial resources. As concerns Alice’s slower typing speed, it could be suggested that she be provided with an adapted keyboard to help get rid of this disadvantage.

When considering cost, it is also appropriate to take into account the value of the employee’s expertise to the employer. We know that Alice has worked for the company for ten years and given that she has worked in most of the other departments at one time or another, it is reasonable to suggest that she be transferred to another vacancy and someone else take on her current responsibilities. This may be a reasonable adjustment, especially as Alice is reluctant to answer the phone due to her slurry speech. This disadvantage can, therefore, be prevented if that duty is assigned to someone else and Alice is reassigned to another post in another department that she is familiar with. The size of the firm suggests that finding Alice another position shouldn’t be too difficult.

It should be noted that the duty does not go so far as to mean that the employer must make a vacancy by dismissing another employee (Dixon v Automobile Association (unreported, EAT, 20 April 2004)), though it has been highlighted in Archibald v Fife Council [22] that the duty may require the employer to treat a disabled person more favourably, essentially suggesting a measure of positive discrimination.

Finally, the employer may consult with the individual about what adjustments might help. The DDA does not impose this as a duty, but the employee is likely to have practical suggestions which may lessen or remove any disadvantage. [23]

As Alice now tires more easily, it could be suggested that storing her client files elsewhere other than the basement and somewhere more accessible would be reasonable adjustments since it is at no extra cost to the employer and will not disrupt the business, yet will mean that she will get more work done within a shorter space of time. We are also told that Alice’s office is on the first floor and there is no lift for her to use. In The Royal Bank of Scotland Group PLC v Allen [24] , the bank was ordered to install a lift for the benefit of wheelchair users and the court held this to be a ‘reasonable adjustment’ under the DDA. Since RBS lost the case even though they argued that installing a lift would be unreasonably expensive and would mean losing eight interview rooms, it may be that Ben is expected to install a lift. The only uncertainty lies in the fact that Alice is not a wheelchair user and Greens LLP are only a medium-sized firm as opposed to a large nationwide branch. Alternatively, Alice could ask to be based on the ground floor or to have a stair lift installed if physically possible. [25]

It should also be noted that the EAT has confirmed that a failure to make reasonable adjustments may breach the implied duty of trust and confidence, allowing the employee to resign and succeed with a claim for constructive unfair dismissal, Greenhof v Barnsley Metropolitan Borough Council [26] .

Additionally, with regards to the comments made by Alice’s colleagues, it is likely that there has been harassment under s3B(1) DDA, presuming it took place in a work-related environment, since she’s been subjected to unwanted conduct which has had the purpose or effect of violating her dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment for her. The fact that she is upset due to these remarks is proof of that. Under s58(1), however, it will be Ben who is vicariously liable for the acts of the employees, whether or not he knew about them. [27]

In relation to Chris, it may be that he has been discriminated under the Employment Equality (Religion and Belief) Regulations 2003 (SI 2003/1660), as it is unlawful for an employer to discriminate on grounds of religion or of religious or philosophical belief.

In the significant case, Ladele v LB Islington [28] , an employment tribunal initially found that Islington Council had subjected a registrar to direct discrimination, indirect discrimination and harassment on the grounds of her religion. The ruling revolved around the council’s requirement that Ladele participate in civil partnership services, contrary to her orthodox Christian beliefs.

She initially succeeded in a claim for indirect discrimination as the requirement to officiate at civil partnerships put her at a disadvantage due to her belief that marriage was a union between a man and a woman. Although promoting gay rights was said to be a legitimate aim, the tribunal found it was not a proportionate means of achieving that aim. This was based on the council’s failure to take into account the employee’s religious beliefs or to consult with her and the fact there were enough staff to carry out services without her participation.

The Court of Appeal, however, upheld the EAT’s decision that the council did not unlawfully discriminate against Ladele by requiring her to officiate at same-sex civil partnership ceremonies. It was said that employers are expected to promote equal treatment in their service, and this decision confirms that they cannot be expected to do so if they have to accommodate discrimination on the behalf of their staff.

This case was applied in McFarlane v Relate Avon Ltd [29] where a Christian relationship counsellor was lawfully dismissed by Relate for refusing to provide counselling to same-sex couples, contrary to their equal opportunities policy. Following these landmark cases then, although it could easily be argued that Kate could arrange for another employee to take on the application of the same-sex couple looking to adopt, it appears that Chris’ claim for discrimination on grounds of religion or belief may fail, especially since it is likely that he will have signed to an equal opportunities policy. It is certain that Kate would not have treated an assistant solicitor, who for reasons unrelated to Christianity, was unwilling to handle the case of a same-sex couple, any differently.