Anna Denton Jones' Slides from HR Insights 25th September. Disability Discrimination Law.

1. Disability discrimination update
Anna Denton-Jones
September 25th 2018

2. navigating employment law
Reminiscing

3. navigating employment law
Factors
• Increase in people in work with disabilities
• The workplace is increasingly making people ill
• People often have more than one underlying
medical condition – the aggregate effect can
be a disability
• Financial pressures and presenteeism
• Sheer prevalence of mental health issues
• Disability discrimination more complex – s15
discrimination arising from a disability

4. navigating employment law
Factors
• Mental impairments no longer have to fit a list
of recognised conditions from the WHO list –
wider
• As time goes by the list of what can count as a
disability gets longer
• Adults who have lived with conditions all their
lives being diagnosed eg:- dyslexia
• The things that count as ‘normal day to day
activities’ getting longer

5. navigating employment law
Who is disabled?
• Section 6(1) Equality Act
– 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
• We are always trying to find out the answer to
this question eg:- from OH.
• Often they get the answer wrong
– Gallop v Newport

6. navigating employment law
Code of Practice
• Expects you to do what you reasonably can to
find out if someone has a disability.
– Take care to train managers to spot warning signs
– Throw away comments in disciplinaries

7. navigating employment law
Knowledge of a disability
Employers need to take care as it is not just
what the employee tells them directly – they are
expected to know what their Occupational
Health Advisers know and to interpret the facts
before them.

8. navigating employment law
Donelien v Liberata UK Limited
• Court of Appeal Gallop v Newport City Council
– ‘it is not enough to simply rubber stamp a
medical adviser’s opinion that an employee is
disabled’ – the employer has to form their
own view of the matter
• What can the employer reasonably be
expected to know? Have they done all it could
reasonably be expected to have found out?

9. navigating employment law
Toy v Chief Constable
Leicestershire Police
• Once on notice something disability related
might be an issue – pause the process and
take advice.
• Caution over managers making decisions
about evidence.

10. navigating employment law
Indirect discrimination
• Same applies to everyone but has a particular
disadvantage to someone with a particular
disability

11. navigating employment law
Difficulty with this
• Disability doesn’t affect people equally so how
can you show that the particular disadvantage
affects those who share your disability

12. navigating employment law
• Government Legal Service v Brookes

13. navigating employment law
• United First Partners Research v Carreras

14. navigating employment law
Action points
• Be prepared to flex your processes
• Caution around cultural expectations
• Give the person asserting a disability the
benefit of the doubt and then move on to the
next stage?

15. navigating employment law
Discrimination arising from
a disability
A person discriminates against a disabled person if they
treat the disabled person unfavourably because of
something arising in consequence of the disability and
the treatment cannot be shown to be a proportionate
means of achieving a legitimate aim.

16. navigating employment law
Sangha v Chemicare UK Limited
• Insisting the trainee worked more quickly to
dispense drugs was unfavourable treatment
because of something arising in consequence
to his disability

17. navigating employment law
City of York Council v Grosset
• Burden – find out if there is a disability behind
misconduct
• May require you to adjust the disciplinary
penalty

18. navigating employment law
Framing your proportionate
means of achieving a legitimate
aim
• Islam v Abertawe Bro Morgannwg LHB
• Hensman v MoD

19. navigating employment law
Harassment
Unwanted conduct relating to disability which
has the purpose or effect of violating dignity or
creating hostile, degrading or humiliating or
offensive environment.

20. navigating employment law
Examples
• Peninsula Business Services Limited v Baker
• Chief Constable of Norfolk Constabulary v
Coffey 2018
• Hartley v Foreign and Commonwealth Office
2016

21. navigating employment law
Duty to make reasonable
adjustments
Where a provision, criteria or practice or a physical
feature of the premises places a disabled person at a
substantial disadvantage in comparison with a non-
disabled person, the employer is required to make
reasonable adjustments to remove that substantial
disadvantage. The employer needs to know or be
reasonably expected to know about the disability
before this duty kicks in.

22. navigating employment law
Examples
• Interview instead of a written test
• Longer to sit a test
• Printing on different colour paper
• Coaching through a recruitment/promotion
process
• Not apply usual policy until an issue of
whether someone has a disability is resolved
• Allowing the employee to tick tasks off
• Computer software

23. navigating employment law
• Compressed hours
• Reducing workload
• Extra support and training
• Altering redundancy criterion so not generic
• Keeping the employee on a higher paid role
• Obtaining a more detailed medical assessment
and discussing the ways in which RA in the
workplace could help
• Not making sudden changes to job role
• Offer mentoring through change

24. navigating employment law
• Allowing the employee to pick where their
desk is
• Advising a recruitment panel about the effects
of a disclosed disability
• ……advising a manager about the effects of a
disclosed disability so they could factor that in
when making decisions
• Explaining suspension carefully and slowly

25. navigating employment law
• EAT South Staffordshire and Shropshire
Healthcare NHS Foundation Trust v Billingsley:
Comments on cost of adjustments vs likelihood
of them achieving outcome

26. navigating employment law
Am I expected to accept
more absence?
Case law suggests that if somebody has a
disability that is likely to involve a ‘greater than
normal’ absence level, you probably need to
adjust your triggers for when you would
normally take action.

27. navigating employment law
Things to adjust
• Trigger points for when you take disciplinary
action

28. navigating employment law
When is it safe to dismiss?
• Bolton St Catherine’s Academy v O’Brien

29. WHAT OTHER STEPS CAN
EMPLOYER’S TAKE?

30. navigating employment law
Biggest most important
contribution an employer can make
• Training for line managers
• Listen to the employee – ask them what adjustments
would help them?
• Get medical advice and then follow it

31. navigating employment law
Focus on strategies to
make it work
• Not ‘how can we get rid of this employee’?
• Proactive in identifying problems
• Reasonable adjustments and alternative
employment

32. Contact us:
adenton@refreshinglawltd.co.uk
Phone 02920 533393 or 077977 545480
www.refreshinglawltd.co.uk