Disability Discrimination: considering potential concessions for disabled employees
We look at two recent cases, one involving an expectation on a disabled employee to work long hours, and the other where an employee dismissed for using racist language claimed disability discrimination.
Expectation to work long hours could amount to a 'requirement'
Mr Carreras was an analyst employed by a brokerage and research firm. Prior to a serious cycling accident he had worked long hours for the firm, usually at least from 9am to 9pm and sometimes much later. Following the accident he was no longer able to do this because of dizziness, fatigue, headaches and difficulties concentrating late in the day. For the first six months after his return to work he worked 8 hours a day. He then started to work later (some deals were with US markets in the evening), and this progressed into requests by the employer that he work later. It was then assumed by the employer that he would be working later for one or two nights of the week, with the employer asking which nights he would be doing that, rather than whether he would be doing it at all.
Mr Carreras wrote to his employer formally objecting to the long hours he was expected to work. This led to a heated exchange with one of the owners of the business, during which the owner criticised him in front of colleagues and told Mr Carreras that if he did not like it he could leave. Mr Carreras resigned. He brought ET proceedings claiming he had been constructively dismissed and that the employer had failed to make reasonable adjustments for his disability. Both his claims failed and he appealed to the Employment Appeal Tribunal (EAT).
Mr Carreras' reasonable adjustments claim was based on there being a 'provision, criterion or practice' (PCP) which put him at a substantial disadvantage compared with persons who are not disabled. In those circumstances his employer was required to take such steps as it was reasonable to have to take to avoid the disadvantage. According to Mr Carreras, the PCP was that he was expected to work long hours and later in the evening. The ET had rejected this argument because there was no express requirement for him to work late or work long hours, although it accepted that there was an expectation that he would do so.
The EAT disagreed with the ET. The EAT found that this expectation was indeed a PCP, and that Mr Carreras did not need to prove that he had been expressly forced to work later hours. The ET should not have taken an overly technical approach to whether it amounted to a PCP just because Mr Carreras had not established coercion. 'Provision, criterion, or practice' is clearly wider than a 'requirement' and the expectation in this case was enough. The case was returned to the ET to decide the nature and extent of the disadvantage and what adjustments it would have been reasonable for the employer to make.
The conclusion that an expectation to work late could amount to PCP is interesting and potentially relevant to other types of discrimination. The EAT commented that the ET should have adopted a 'real world view' of what a requirement was in this context. Interestingly, the ET had recognised that there were various commercial or political factors which may have led Mr Carreras to decide it was in his interests to work later. The EAT pointed out that employees can feel obliged to work in a particular way even if disadvantageous to their health. It is not clear whether a PCP would have been established if the employer had not expressly asked firstly whether Mr Carreras was working late and secondly which nights he would be working late. It is not a huge leap to see this kind of PCP being established by, for instance, a woman with childcare responsibilities or someone with a different disability in support of an indirect discrimination claim.
Loose link between misconduct and disability
Mr Risby was employed by the London Borough of Waltham Forest as a deputy risk and insurance manager. He is a paraplegic. In 2013, the Council decided to organise a series of workshops for its managers including Mr Risby. Initially the workshops were to take place in an external location which provided wheelchair access. However in June 2013 it was decided that the external venue should not be used because of the cost. Instead they were to take place in a basement at the Council's offices. When Mr Risby was invited to the workshop by his Divisional Director, he discovered that there was no wheelchair access to the basement.
Mr Risby went to see the Divisional Director's personal assistant, Ms Scott, three times about the workshop and various suggestions were made for him to attend a later workshop at a wheelchair-accessible venue. On the third occasion he became extremely angry with Ms Scott. He shouted at her and she was close to tears. She involved a more senior staff member, who Mr Risby also shouted at. Unknown to Mr Risby, Ms Scott was of mixed race origin and she believed the comment was directed at her.
Following this and another comment the same day again using racist language, Mr Risby was suspended and escorted from the premises. After an investigation he was dismissed. Mr Risby had 23 years' service and he appealed on the basis that dismissal was too severe. However the dismissal was upheld because the language he had used ran counter to all the Council stood for; he had behaved in a harassing way towards Ms Scott; and the Council did not accept that the incident would not be repeated. Mr Risby brought a claim for unfair dismissal and discrimination arising from a disability. He lost his claims in the ET and appealed to the EAT.
'Discrimination arising from a disability' occurs where a person/employer treats a disabled person unfavourably because of something arising in consequence of the disability, and the person/employer cannot show that the treatment is justified (in legal parlance a proportionate means of achieving a legitimate aim). The EHRC Employment Statutory Code of Practice gives an example of a person who is disciplined for losing her temper, which is out of character and is a result of severe pain through having cancer. It suggests that such disciplining would be unfavourable treatment because of something arising in consequence of the disability. However the ET had distinguished this example from Mr Risby's case as it had found that Mr Risby's comments arose out of his short temper and not his disability. It did not accept there was a direct link between the disability and the misconduct.
The EAT allowed Mr Risby's appeal and sent it back to the ET for reconsideration. The EAT rejected the conclusion that they were not linked. It noted from previous case law that there only needs to be a loose connection between the disability and the unfavourable treatment. All that had to be established was that Mr Risby's conduct arose in consequence of his disability. If he had not been disabled, Mr Risby would not have been angered by the decision to change the venue, and his misconduct would not have occurred. His short temper was one cause of his misconduct, but so was his disability. As they were linked, it was possible that dismissal was not a reasonable sanction in relation to the unfair dismissal claim.
This decision shows the difficult position employers can find themselves in and highlights the Equality Act 2010's wide wording for the 'discrimination arising from a disability' provisions. Of course, Mr Risby has not yet won his case, and the Council will still have the opportunity to establish that in these circumstances, dismissal was a proportionate means of achieving a legitimate aim. A council which has a statutory equality duty and needs to demonstrate zero tolerance for racist behaviour may succeed in this defence. However it is clear that very careful consideration needs to be given where an employee has 23 years' service and is dismissed without a final warning. It also reminds employers of the need to follow up incidents with disciplinary action and written warnings where necessary. Mr Risby's short temper was well-known: it is not inconceivable that there could have been other less serious incidents involving him which had not been properly dealt with.