Disability discrimination update
There have been a number of developments in how employers are expected to deal with disabled employees. The new ACAS guidance discussed below, makes the point that in most cases, people develop a condition rather than being born with it, so at some point, most employers are likely to have a member of staff who becomes disabled. Scope, the disability charity, has reported that only 48% of disabled people were in employment between January and March 2015 compared to 73% of the population generally. The biggest barrier to being recruited, according to 42% of disabled people, were misconceptions about what they would be capable of.
In December 2015, ACAS published comprehensive new guidance "Disability discrimination: key points in the workplace". The purpose of the guidance is to provide an overview of what disability means, the types of disability discrimination that can occur in the workplace, how it can be dealt with and how to reduce the risk of disability discrimination.
The Equality Act 2010 defines a disabled person as someone who has a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. In addition to the four types of discrimination that apply to the various protected characteristics under the Act (direct and indirect discrimination, harassment and victimisation) there are two types of discrimination that apply only the protected characteristic of disability:
- Discrimination arising from disability (section 15 of the Act);
- Failure to make reasonable adjustments (section 20 of the Act).
The ACAS guidance identifies seven key areas of employment where disability discrimination can occur and provides useful examples of how discrimination can arise:
- Pay and terms and conditions of employment;
- Sickness absence;
- Promotion opportunities;
- Training opportunities ;
- When an employee is dismissed;
One of the most difficult areas of disability discrimination, but one of the most commonly engaged (as can be seen from the cases discussed below, for example) is the duty to make reasonable adjustments. ACAS' guidance provides helpful examples of how to deal with issues such as making reasonable adjustments during recruitment, dealing with pay for employees who cannot work at the same speed as others and travelling for work.
Redundancy and reasonable adjustments
The recent Employment Tribunal decision in the case Waddingham v NHS Business Services Authority, illustrates how a failure to make reasonable adjustments during a redundancy exercise disadvantaged a disabled employee who was unsuccessful at a competitive interview.
Mr Waddingham had worked for the NHS since 1984 initially as a nurse but by 2011 was in a management role working with the local Primary Care Trust (PCT). In early 2012, Mr Waddingham was told his job was at risk. An NHS reorganisation resulted in the abolition of PCTs which were replaced by Commissioning Support Units (CSUs). Some employees from the PCTs were put into new roles in the CSUs if there was a sufficient job match. An equivalent role to Mr Waddingham's was Client Relationship Manager (CRM) but nobody was matched for that role. On 4 December 2012, Mr Waddingham was notified that he was at risk of redundancy.
Later that month, Mr Waddingham was diagnosed with throat cancer and began radiotherapy treatment in January 2013. Cancer is one of the exceptions to the definition of disability referred to above and a person is deemed to be disabled from the point of diagnosis. There is no need to show a substantial and long-term adverse effect on carrying out normal day-to-day activities.
In January 2013, Mr Waddingham asked about being considered for the CRM position. He told his employer about the recent diagnosis and that he needed eight weeks of radiotherapy for which he was signed off work. HR informed him that he could submit a shortened application form which he did. He was then invited for an interview. Mr Waddingham explained that his voice was affected by his ongoing treatment and he was on medication to control the pain but was able to attend the interview on 18 February (even though he was signed off sick at that time). At the interview Mr Waddingham was told that the interview could be re-arranged if he preferred and that he could have a break if he needed to.
Mr Waddingham scored 54% at the interview but the required competency level was 75%. His application was unsuccessful and Mr Waddingham was dismissed on 31 March. He then brought Employment Tribunal claims for a failure to make reasonable adjustments and for discrimination arising from disability.
The claims were successful. In relation to the first claim, the Employment Tribunal found that the provision, criterion or practice (PCP) requiring Mr Waddingham to attend a competitive job interview for the CRM role and to achieve a score of at least 75% put him at a substantial disadvantage compared to non-disabled applicants. Further, it was likely that his preparation for the interview and his performance were adversely affected by his radiotherapy treatment which caused fatigue and affected his concentration. The interviewers should have known that Mr Waddingham's ability to deal with a competitive interview would be hampered. Even though Mr Waddingham was prepared to proceed with the interview, his employers should still have considered whether any reasonable adjustments were necessary. The Employment Tribunal considered what these might be. It was not necessary to lower the pass mark or even to delay the interview process. It recognised that some form of assessment had to be carried out. However, Mr Waddingham could have been assessed on the basis of his existing performance records and appraisals as he had lengthy service within the NHS and had carried out a variety of roles. This constituted a failure to make reasonable adjustments.
As Mr Waddingham was not appointed to the CRM position because of his poor performance at the interview, which was adversely affected by his condition, he had also suffered from discrimination arising from disability. The employer's defence of justification, namely, the aim of appointing the best candidate for the post, failed. A more appropriate aim, according to the Employment Tribunal, was to appoint someone who could perform the role to the required standard. In any event, requiring Mr Waddingham to attend a competitive interview was not a proportionate way of achieving the employer's aim.
Mr Waddingham was awarded compensation of £115,056.
Sickness policies and reasonable adjustments
The Court of Appeal has recently give its decision in the well-publicised case of Griffiths v The Secretary of State for Work and Pensions. The issue in this case related to reasonable adjustments and sickness absence policies.
Ms Griffiths had worked for the DWP since 1976. In early 2011 she had a continuous period of sickness absence of 62 days. She had been diagnosed as suffering from post-viral fatigue and then fibromyalgia. Under the DWP's attendance management policy, certain lengths of absence (the "consideration point") triggered an escalating warning process beginning with a written improvement warning and ending possibly in demotion or dismissal. The consideration point could be extended as a reasonable adjustment for disabled employees.
Ms Griffiths was given a written warning because of her attendance record. She raised a grievance arguing that as she had a disability, the DWP should have made reasonable adjustments. Her grievance was not upheld.
She then brought a disability discrimination claim under section 20 of the Act on the basis that the DWP should have made two specific reasonable adjustments:
- The 62 day absence period should have been treated as exceptional absence and disregarded for the purpose of the policy and the written warning withdrawn;
- The consideration point should have been extended for her by an additional 12 days from the 8 days stated in the policy which would mean that no disciplinary action would be considered until after 20 days' absence.
Ms Griffiths did not bring a claim under section 15 of the Act, that is, discrimination arising from disability.
The Employment Tribunal rejected her claim. Although, through the application of the attendance management policy the DWP had imposed a provision, criterion, or practice (PCP) on Ms Griffiths, this did not put Ms Griffiths at a substantial disadvantage. The purpose of the PCP was to require a certain level of attendance to avoid receiving warnings and a possible dismissal. The policy did not disadvantage disabled staff because a non-disabled employee with the same absence would have been treated in the same way. Consequently, the duty to make reasonable adjustments did not arise. Further, it did not consider that the adjustments sought were reasonable in any event. The EAT upheld that decision.
The Court of Appeal gave its decision in December 2015. It upheld the earlier findings that the adjustments sought by Ms Griffiths were not steps which the DWP could reasonably be expected to take and dismissed the appeal on this ground.
However, the PCP, which required a certain level of attendance in order to avoid disciplinary sanctions, would substantially disadvantage disabled employees because their disability could increase the likelihood of absences. The Employment Tribunal and EAT were wrong to conclude that because the absence management policy applied equally to everyone the duty to make reasonable adjustments did not arise. If an arrangement/policy has the potential of creating a disadvantage for disabled employees, the duty to make reasonable adjustments is engaged. What is a reasonable adjustment will then depend on the specific facts.