Disability

Discrimination arising from disability and reasonable adjustments

disabilityLast week I posted a short piece on the duty to make reasonable adjustments and thought a follow up piece on other the other main reasonable adjustment related claim in the Equality Act. In the aftermath of the House of Lords decision in Malcolm Parliament introduced a new type of discrimination in section 15 of the Act, the main provision of which reads:

(1)A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B’s

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This is termed discrimination arising from disability (dafd) and is an important provision for union representatives and workers to be aware of. The claim can be broken down into five constituent questions:

  1. Is the worker disabled?
  2. Does the employer know, or should they know, the employee is disabled?
  3. Did the employer treat the employee unfavourably because of “something” (for example, sickness absences, being late for work, falling asleep)?
  4. Was that “something” caused or significantly connected to the employee’s disability?
  5. Is the unfavourable treatment in pursuit of a legitimate goal and are the means of achieving this in this case proportionate?

It is a rare case where there is an issue related to an employee’s disability that will not engage this issue in some way. What I want to focus on here is the relationship between reasonable adjustments and discrimination arising from disability.

In the 2015 Court of Appeal – and PCS backed – case of Griffiiths v DWP the court offered some good explanation on the difference between the duty to make reasonable adjustments and discrimination arising from disability: “[the] section 20 duty [ that is, the duty to make adjustments] is normally relevant when looking into the future; it is designed to help prevent treatment which might give rise to a section 15 claim from arising.” I think this distinction between forward looking and backward looking complaints is a good way of putting it – a good example is the type of situation that gave rise to the case in Griffiths.

Suppose an employer has a policy that if an employee is absent for 6 days in a year they will be subject to a formal disciplinary warning and a employee has been absent for 8 days in that period, but with three of those day’s being disability related and there is evidence that the employee’s disability is likely to cause additional absences going forward. It would be open to the employee to argue, before any disciplinary issues are even raised to say that there has been a failure to make adjustments to the 6 day trigger point. As the Court of Appeal suggested the duty to make adjustments is “looking into the future” to prevent issues arising. However, if a warning is issued the best claim is likely to be one of discrimination arising from disability on the basis that a warning has been given and this is unfavourable treatment but because there was a previous failure to make adjustments before issuing the warning this was disproportionate. The Equality and Human Rights Commissions statutory guidance puts the relationship with reasonable adjustments this way:

If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified (5.21)

Although the EHRC Code is not referred to the same point is made by the court in Griffiths:

An employer who dismisses a disabled employee without making a reasonable adjustment which would have enabled the employee to remain in employment – say allowing him to work part-time – will necessarily have infringed the duty to make adjustments, but in addition the act of dismissal will surely constitute an act of discrimination arising out of disability. The dismissal will be for a reason related to disability and if a potentially reasonable adjustment which might have allowed the employee to remain in employment has not been made, the dismissal will not be justified.

The recent decision of the Employment Appeal Tribunal earlier this month in South Warwickshire NHS Foundation Trust v Lee and Ors introduces a further dimension. The case is a complex one but what matters for our purposes is the finding that a NHS Trust rescinded a job offer it had made upon receiving a negative employment reference that arose in part from disability related reasons. The reason why the Trust was found to have discriminated against the applicant for something arising from disability is because it conducted no investigations such as Occupational Health advice or even talking to the applicant about the issue to assess whether reasonable adjustments could address the matter. And so, even though there had been no prior obligation to make adjustments a failure to consider them before making treating an worker unfavourably (in this case withdrawing a job offer) was also discrimination arising from disability for reasons related to reasonable adjustments.

One other advantage of discrimination arising from disability claims is that the time limits for initiating an employment tribunal claim or pursuing grievances can be extended. The deadline for Employment Tribunal claims is still three months from the thing being complained about but in the context of adjustment cases the period will run from the day the decision not to make the adjustment is made but in discrimination arising from disability claims the relevant date is the date of the unfavourable treatment which may be weeks or even months later.

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Data Protection/Privacy · Human Rights - Article 8

Time for Celebration? The employment law implications of the Cliff Richard Judgement

privacyAside from the pathetic pun the title of this post is also misleading, I don’t think there are any significant employment law implications of Cliff Richards recent Human Rights Act victory against the BBC. However, I do think the judgement, if it stands (I am not sure it will upon appeal), could have some significance for some ordinary workers. But first a brief reminder of the facts of the case.

Cliff Richard was being investigated by South Yorkshire Police (SYP) in respect of an historic sex offence allegation that had been made against him. The SYP were planning to search Cliff Richard’s property. Motivated by fear that the BBC would report on this before the fact SYP cooperated with the BBC and as the search was being effected the BBC filmed this from outside, including the use of helicopter images – the story was subject received substantial media coverage. At no time was Cliff Richard actually charged by SYP for the offence.

Cliff Richard brought an action against both the BBC and SYP for a breach of his privacy and data protection rights under both the Data Protection and Human Rights Acts of 1998. In the event it was only necessary to consider his claim under the Human Rights Act. The BBC’s argument focussed much on Article 10 (Freedom of Speech/the Press) would be unduly interfered with if found wrong given the public interest in the matter. The finding of the judgement was that as a general principle a person who is subject to a police investigation up to and including arrest has a right to privacy that that investigation should be private and engaging that individual’s Article 8 (privacy and family life) rights. It should have been in Cliff Richard’s case, even though he was a public figure, and even if the investigation is in the public interest to be disclosed it does not follow that the subject of the investigation is.

The BBC have complained that the judgement “creates new case law and represents a dramatic shift against press freedom and the long-standing ability of journalists to report on police investigation.” Other commentators are equally critical such as  David Hencke and Robin Callender-Smith. The issues are real but for my part I think this is a good judgement that prevents tarnished reputations based n little more than speculation, and rumour.

But what relevance has this to employment relationships, I hear you ask?

As I said I do not think the impact on employment law per se will be telling, although it could provide an interesting factor on the reasonableness of an investigation in cases such as Cooper in which a Police force provided an employer with details of an employee’s arrest which then relied on this information to base a misconduct investigation.

In my time as a union representative I have represented a number of persons whom have been ‘outed’ by media outlets about their arrest for criminal investigations. These cases always follow the same route. The fact of an investigation / arrest is either reported in the press, with some salacious context that is frequently inaccurate. Or alternatively, the employer is informed of police investigations and the story then finds its way into the media one way or another.  The employee is suspended – which they are assured is only a ‘neutral act.’ The investigation proceeds, with the employee normally unable to contribute or respond to the allegations given to do so may prejudice his or her case (since no sooner has a response been given than it will be whisked off to the police). The employer refuses to defer the investigation until after the criminal investigation is concluded and so makes a decision on the (completely one-sided) evidence they have. The employee is dismissed with the major reason being that the employer has can no longer have trust and confidence in the employee, given the backdrop of criminal allegation or that the actions (even if not criminal) have brought disrepute upon the employer.

As a representative these cases are difficult, because for good reason the employee has followed their defence solicitor’s advice had not given a positive defence to the allegation or context. The only real arguments that can be advanced are procedural and these will rarely be sufficient to avoid dismissal – if dismissal is not an actual inevitability it is certainly the very likely outcome.

And this is where I think the Cliff Richard judgement is a cause of a certain degree of optimism. If the fact of an criminal investigation or even arrest encompasses the employee’s right to privacy the likelihood of these types of cases manifesting themselves by being reported in the media or even reported by the police under common law disclosure. As such the impulse for an employer to initiate an early investigation is much less likely to present themselves unless the employee reveals an investigation against them to their employer voluntarily. And if it does happens perhaps the employment tribunal will begin getting more serious about applying human rights in employment tribunal proceedings.  Time will tell …

 

Disability · Uncategorized

The duty to make reasonable adjustments

discriminationThe BBC have been reporting that a Belfast women has won a £2,000 disability discrimination after event organisers, Eventsec Ltd, failed to make reasonable adjustments. The case itself, as reported by the BBC (I have not seen the judgement, strikes me as a helpful case with which to explain the duty).

The duty to make adjustments is a very powerful, and in my view under-utilised, right of employees in the workplace. Whether conducting sickness absence, performance, disciplinary, objective setting or a whole host of other meetings and workplace processes the duty to make reasonable adjustments can be a powerful tool to ensure employees are treated fairly.

The facts of the reported case can be summarised quite simply. Kayla Hanna was attending a Red Hot Chilli Peppers concert; Kayla has Type 1 diabetes. This meant that her body did not produce insulin, sometimes there can be a sudden drop in blood sugar (called a hypo) that can be life threatening. For that reason Kayla carried a bottle of Lucozade so if she needed to she could replenish her blood sugars and stay safe.

When she attended the gig she had a bottle of Lucozade to cover this eventuality but was told that there was a policy prohibiting event-goers from taking in bottles. Kayla explained that she needed the bottle because of her diabetes and showed evidence of her diabetes by showing her diabetes tattoo and insulin pack. Eventsec Ltd maintained that the rule applied to everyone and refused to allow Kayla to take the Lucozade with her. Thankfully, it appears that Kayla did not have a hypo attack but nonetheless was anxious for the duration of the concert.

The court found that Eventsec Ltd’s refusal to adapt the ‘strict policy’ was a breach of their duty to make reasonable adjustments and the court awarded £2,000 in compensation. It is, as most reasonable adjustment cases are, quite a simple factual situation. In the rest of this post I want to break the situation down showing the key requirements for when an employer is required legally required to make a reasonable adjustment.

Is there a Disability?

For the requirement to make reasonable adjustment to be engaged an individual must be a disabled person. For Kayla Hanna this was her Type One Diabetes. It practice a disability is manifested as a known medical condition but there is no necessary requirement that a condition be a medical one, and sometimes a medical condition (like diabetes) will not be deemed to be a disability.

The focus on establishing whether a person is not on whether or not a person has a certain condition (except for certain conditions where a person is automatically a disability such as certified visual impairment or cancer) but what effect the condition has on the person’s ability to complete normal day to day activities. Normal day to day activities is a wide ranging concept. This can be seen in the EU case of Ring which defined a disability as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” This could mean sometimes a disabled person cannot do something but it is more commonly the case that they can but it takes more time than it would for a non disabled person. The impairment must be long term to qualify, and long term means something that has lasted or is could well last for 12 months or more.

The fact is that under the Equality Act 2010 a very many people will be likely to be the disabled. For example, in my experience there are not many people on long term sick absence who do not have at least a reasonable argument that they are disabled but the biggest obstacle is people own reluctance to use the label as it is a term with a stigma.  However, adjustments like those found not to have been applied in Kayla are in the main exceedingly straightforward and cost nothing to apply but can make a huge difference to working lives. Whilst for a union rep raising disability is often a defence against management actions that is a sign that something has gone wrong – early identification can instead often avoid those situations arising in the first place.

Does the employer know there is a disability?

One of the difference in reasonable adjustment law in an employment field rather than a provision of services case (such as in Kayla Hanna’s case) is that the for the duty to make adjustment’s to be engaged the employer must know that the employee is disabled – that knowledge can come from being informed by the employee or by ‘constructive knowledge; in most non-employment cases the duty is anticipatory meaning they do not need knowledge of an individual’s disability. However, in Kayla’s case she informed the security officer of the disability, and showed evidence of this and her insulin pack and this would be likely to satisfy the requirement in any case. It is good practice for an employee to inform the employer in writing of the condition, and, as importantly, how this makes certain activities impossible or more difficult.

Is there an arrangement that places a disabled person at a disadvantage because of their disability?

The central plank of the duty to make reasonable adjustments is that the employer has a “provision, criterion or practice” that places the disabled worker at a substantial disadvantage compared to a non-disabled worker. That, at least, is the language used in the Equality Act 2010. In less grandiose terms however the requirement can be summarised as a neutral arrangement or practice of an employer that has harsher consequences on a disabled person, or more specifically, a specific disabled person.

In the  Eventsec Ltd case the company had a policy that was applied equally to all concert-goers: no-one was able to bring in any fizzy drinks or bottles. Legally speaking provision, criterion or practice are distinct, something can be a provision and not be a practice but practically speaking in most cases nothing turns on this. This was a policy that was neutral (it was not aimed at diabetics). However, when applied across the board as it was to Kayla, this had a more severe effect on Kayla as a diabetic than it would have otherwise. For a non-diabetic this may have meant mere inconvenience, or perhaps having to fork out for an overpriced replacement inside the concert venue. However, for  Kayla she was placed at risk of a hypo with no immediate source of raising blood sugar.

The importance of reasonable adjustment law is that a provision, criterion or practice can be found in innumerable circumstances. Alternatively, if there is a physical feature that places an employee at a disadvantage this will also engage the duty to make a reasonable adjustment;. A simple example of this would be a job applicant who uses a wheelchair who is invited to a job interview on the first floor but there is no lift available and just a flight of stairs which the applicant cannot ascend.

Is there an adjustment that might work?

The fourth aspect is the question of whether there is an adjustment that the employer could make that removes or mitigates the disadvantage caused by the provision, criterion or practice. For Kayla Hanna the disadvantage caused by the policy against drinks being brought into the concert could have been addressed either by dis-applying the policy in the case of disability or, as the court also suggested, bottles of Lucozade could have been given to disabled ticket holders.

A reasonable adjustment need to be guaranteed to succeed, all that is required is that there is something that could work. This means that the oft cited reason by workplace managers that an adjustment cannot be made as there is no guarantee of success is false.

Also, unlike most other types of discrimination law the law on reasonable adjustments recognises that sometimes an employer is required positively discriminate and treat disabled person more favourably. This was famously set out by the House of Lords in the case of a very important case of Archibald: “The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination.”

So, to give a common example, if an employer has a policy on convening disciplinary hearings after a certain number of sickness absences and an employee is more likely to be absent for disability related reasons then it will often be a reasonable adjustment to all an employee more days sickness absence before they start disciplinary proceedings than they would otherwise.

Is the adjustment reasonable? 

The last requirement is whether in all the circumstances of the case the adjustment is reasonable – this is a high hurdle to reach. Factors that are considered are cost, health and safety of staff, impact on operational effectiveness. However, it will be very rare where a person is at a substantial disadvantage for not adjustments to be possible. As was stated by the Employment Appeal Tribunal in Dyer v London Ambulance NHS Trust (2014) “It will be rare, though plainly possible, for there to be circumstances in which no reasonable adjustment can be made. Tribunals should think long and hard before concluding this.”

 

Uncategorized

Around the Unions

hedley

RMT

Yesterday, whilst attending a counter-protest to the Free Tommy Robinson brigade (apparently you can be convicted twice of contempt and even plead guilty and it is still a ‘fit up) RMT Assistant General Secretary Steve Hedley was, according to Hedley, assaulted by right wing thugs. Guardian story is here.

CWU 

Martin Henwood was a Swansea postman of 32 years standing when in May he was dismissed by the Post Office, this was because he allegedly failed too follow the correct protocol for unaddressed mail despite the fact he followed existing and established local procedures. His union colleagues in Swansea balloted for strike action and received an 89.9% yes vote. After multiple refusals to review the decision to dismiss and before a day of strike action had been taken Martin has been reinstated. CWU post is here.

PCS, FDA and Prospect

As part of the negotiating mechanism with recognised Trade Unions on civil service pay the Cabinet Office had committed to at least two consultation meetings. However, for Cabinet Office and Treasury ministers their word was not their bond and a pay framework was unilaterally released to all civil service departments. In a rare moment of concord PCS, FDA and Prospect have issued a joint statement on the “shambolic and contemptible” consultation process and called for the Pay guidance to be withdrawn.

PCS are pressing on with a ballot for industrial action on the civil service pay, it will be interesting to see where the other two unions end up given the intransigent position of the employers. The joint statement is here.

Bectu

A Croydon Employment Tribunal has ruled that 2 BECTU reps and former employees at the Picturehouse Cinemas Ltd were unfairly dismissed for alleged misconduct related to strike activities. Interestingly however the claim of automatic unfair dismissal was lost and it will be interesting to see if an appeal on that decision is pursued. BECTU post explaining the decision is here.