The In-House Lawyer

There have been several significant developments in case law concerning disability discrimination over recent months, but what impact will these changes have on employers? We examine below some of the key developments and their practical effect.

Overview of the current legislation

The Disability Discrimination Act (DDA) 1995 outlaws various key types of discriminatory behaviour, including the following:

• discrimination against disabled employees (direct discrimination);
• discrimination against disabled employees for a reason relating to their disability (disability-related discrimination); and
• victimisation and harassment of disabled employees.

It also imposes an obligation on employers to make reasonable adjustments to prevent disabled employees being put at a disadvantage in the workplace. Any failure by the employer to make such reasonable adjustment is itself an act of discrimination.

Definition of disability: long-term effect

To qualify for protection under DDA 1995, a person must first show that they satisfy the statutory definition of ‘disabled’ as contained in s1(1):

‘A person has a disability for the purposes of this Act if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.’

An impairment is considered long term if it has lasted or is likely to last at least 12 months, or is likely to last for the rest of the life of the person affected.

It is clear from government guidance (DDA 1995: Guidance on matters to be taken into account in determining questions relating to the definition of disability) that it is possible to consider the cumulative effect of the different impairments when considering whether an impairment has a substantial adverse effect. However, where an employee has an impairment likely to last less than 12 months, followed by another impairment likely to last less than 12 months, can the two impairments be aggregated for the purposes of considering whether the impairment is long term?

The Employment Appeal Tribunal (EAT) considered this point in Patel v Oldham Metropolitan Borough Council & anor in January [2010] and confirmed that it is possible for two short-term impairments to be added together to achieve the 12-month requirement to qualify for protection under DDA 1995. However, the EAT held that this can happen only where the two impairments are related, which will be a question of fact for the Employment Tribunal (ET) to determine in each case. In Patel, the claimant had suffered inflammation of the spinal cord (myelitis) and went on to develop muscular pain (myofacial pain syndrome). Neither impairment lasted more than 12 months in its own right, but together they did. Having found that the impairments could in theory be aggregated, the EAT remitted Patel to the ET to consider whether they were in fact related.

This decision has potentially wide-ranging consequences for employers. Given that employees who would not previously have qualified for protection under DDA 1995 may now do so, employers will have to be extra vigilant for consequential symptoms when employees are on sick leave, or develop any short-term physical or mental impairment.

The new fit note regime that was introduced on 6 April 2010 (see p34) may assist employers. The fit note will give employers an indication of the adjustments that may facilitate an employee’s return to work from sick leave, which should serve as a warning to employers that a duty to make adjustments under DDA 1995 may have been triggered. In addition, where risk assessments are carried out before employees return to work, this should make employers more alert to the health of their employees in any event. When making risk assessments or obtaining medical reports, employers should also seek to discover what consequential symptoms might occur and their likelihood.

Associative discrimination

In EBR Attridge Law LLP & anor v Coleman [2009], the EAT confirmed that it is possible for employees to claim under DDA 1995 for discrimination they allege to have suffered, not only as a result of their own disability, but as a result of the disability of another person (so-called associative discrimination).

As drafted, DDA 1995 only provides protection for disabled people. The claimant in Coleman is not disabled. However, she claimed that she was subjected to direct discrimination and harassment by her manager on the grounds of the disability of her son, for whom she is the primary carer.

After referring Coleman to the European Court of Justice, the ET concluded that DDA 1995 should protect employees from associative discrimination and read wording into DDA 1995 to achieve this. EBR Attridge Law LLP appealed, claiming that the ET had ‘distorted and rewritten’ DDA 1995. The EAT rejected the appeal, but in doing so also rejected the wording proposed by the ET. Instead, the EAT created some completely new subsections concerning direct disability discrimination and harassment that it considered should be ‘read into’ DDA 1995 from 1 October 2004 onwards.

On the face of it, the Coleman decision is groundbreaking. The extent to which the EAT was prepared to re-write the law was unprecedented. While it is well-established that national law should be interpreted in line with EU law in so far as possible, and it is not difficult to follow the logic in the EAT’s argument that the concept of associative discrimination is in the spirit of DDA 1995, it nevertheless seems far beyond the remit of the EAT to re-draft legislation.

Unsurprisingly, the Coleman decision is being appealed. However, in the meantime, DDA 1995 should be read in accordance with the EAT’s judgment. Although the amendments are not limited in their effect to carers of disabled people, they will naturally be the ones who benefit most. Now, in addition to the right to make a request to work flexibly, carers of disabled relatives will have the right to complain if treated less favourably because of their caring responsibilities.

However, it is notable that the sections created by the EAT, and deemed to have retrospective effect, related only to direct discrimination and harassment. The EAT’s decision does not extend to adding associative protection to the disability-related discrimination or reasonable adjustments provisions. The EAT therefore provides fairly limited protection to employees (although it is certainly possible that faced with this argument in the future, a tribunal would consider itself obliged to read in similar protection in these areas). In any event, it is anticipated that the Equality Bill will come into force in October 2010. The Bill includes provisions for protection against associative disability discrimination, lessening the long-term impact of Coleman.

Disability-related discrimination and reasonable adjustments

Since London Borough of Lewisham v Malcolm [2008], disability-related discrimination is thought to be largely redundant as a claim in its own right. Following Malcolm, to prove disability-related discrimination, a disabled employee must show that they have been treated less favourably than a non-disabled employee who is otherwise in the same position as the claimant. For example, if an employee alleges that they have been dismissed as a result of a high level of disability-related sickness absence, they must show that a non-disabled employee with the same level of sickness absence would not have been dismissed. This is a very narrow comparative test akin to that which must be satisfied for the purposes of direct discrimination under DDA 1995, and in most circumstances an employee will not be able to show less favourable treatment.

To circumvent the comparator test set out in Malcolm, employees have been increasingly relying on creative claims for failure to make reasonable adjustments. The recent Fareham College Corporation v Walters [2009] is a good example.

In Fareham, the EAT held that the claimant had been dismissed because their employer had considered that the alternative to dismissal was to make adjustments that it did not wish to make. Therefore, since the decision to dismiss was tainted by the employer’s failure to make reasonable adjustments, the EAT held that the dismissal could in itself be discrimination by reason of the fact that it was a failure to make a reasonable adjustment.

This decision will be of particular benefit to employees alleging that an earlier failure by an employer to make reasonable adjustments resulted in their subsequent dismissal. Previously, employees running this argument often ran into difficulties, since the time limit for bringing a reasonable adjustment claim runs not from the dismissal, but from the date of the failure by the employer to make the adjustment. Following Fareham, the time limit for a claim of this nature could now run from the date of the employee’s dismissal. It also means that, at the point of dismissal, an employer should consider whether it is possible to make a reasonable adjustment (such as transferring the employee to another branch) to avoid the dismissal.

There is no doubt that this will make it easier for employees to use the law on reasonable adjustments to cover the gap left by the decision in Malcolm. However, the government recognises that the Malcolm decision took the law on disability-related discrimination in an unfortunate direction and proposes to address this situation in the forthcoming Equality Bill. The concept of disability-related discrimination will be dispensed with and a new claim of discrimination arising from disability will be introduced that will seek to reverse the decision in Malcolm.

Conclusion

As these recent cases show, even over 15 years since the introduction of DDA 1995, some of the fundamental principles of disability discrimination law are still developing. With developments so fluid and with the precedent now set in Coleman for tribunals to re-draft the legislation, it is now difficult to be clear what the actual law is. It is hoped that the introduction of the Equality Bill will stabilise the situation, but this is by no means certain. Until then, employers and legal practitioners alike must monitor developments closely.

By Daniel Naftalin, partner, and Laura Garner, solicitor, Mishcon de Reya.E-mail: daniel.naftalin@mishcon.com; laura.garner@mishcon.com.