3. Definition of Disability
“A person (P) has a disability if P has a physical
or mental impairment, and the impairment has a
substantial and long-term adverse effect on his ability
to carry out normal day-to-day activities”
Section 6(1), Equality Act 2010
4. Definition of Disability
• Four part test:
– Does the person have a physical or mental impairment?
– Does that impairment have an adverse effect on their ability to
carry out normal day-to-day activities?
– Is that effect substantial?
– Is that effect long-term?
5. Definition of Disability
• Also remember:
– Deemed disabilities: e.g. blindness, severe
disfigurement, cancer, HIV infection and multiple
sclerosis
– Excluded conditions: e.g. addiction or
dependency, hayfever, voyeurism, tendency to set
fires…
8. Karsten Kaltoft v The Municipality of Billund
Facts
• Mr Kaltoft worked as a childminder in Denmark for 15 years
• He was dismissed, ostensibly on grounds of redundancy,
following a downturn in work
• Mr Kaltoft had a BMI of 54
• According to the World Health Organisation, a BMI in excess
of 40 is categorised as class 3 obesity (the most severe
category) described as “extreme or morbid obesity”
9. Karsten Kaltoft v The Municipality of Billund
Facts
• Mr Kaltoft claimed that he had been dismissed
because of his obesity
• He brought proceedings in a Danish District Court
• The District Court referred the case to the ECJ for
guidance as to whether obesity can be classified as
a “disability” under European law
10. Karsten Kaltoft v The Municipality of Billund
Decision
• The European Court of Justice held:
– There is no general principle that prohibits
discrimination on grounds of obesity itself
BUT
– The effects of obesity, may, in certain
circumstances, mean that a person is disabled
and protected from discrimination
12. Things to consider
• Do employers have a duty to consider reasonable
adjustments to working practices and/or workplaces
for obese employees?
• Do employers have a duty to help employees lose
weight?
14. Disability Guidance
• Equality Act guidance suggests that if a person can
reasonably be expected to modify their behaviour to
reduce the effects of an impairment, they might not
be considered disabled
• For example, a coping or avoidance strategy might
alter the effects of an impairment to the extent that
they are no longer substantial. If so, the person will
no longer meet the definition of disability
16. Metroline Travel Ltd v Stoute
Facts
• Mr Stoute was a bus driver for 21 years before being
dismissed for gross misconduct
• He suffered from type 2 diabetes and brought a
claim for disability discrimination
• He followed a diet designed to avoid sugary foods
such as fizzy drinks
17. Metroline Travel Ltd v Stoute
Facts
• The Tribunal held that he was disabled but dismissed
all of his complaints.
• Metroline appealed as it had a workforce with a
number of people who suffered from type 2 diabetes
• They were worried that the decision would be used
by other employees to support an argument they were
disabled
18. Metroline Travel Ltd v Stoute
Decision
• The EAT held that type 2 diabetes does not itself
amount to a disability
• It held that “treatment” in the guidance was not wide
enough to include abstaining from fizzy drinks
• So the effect of type 2 diabetes should be considered
as if the diet was being followed
19. Things to consider
• An employee with a serious condition should not be
assumed to be disabled for the purposes of the
Equality Act
• If a condition can be eliminated or minimised by
taking very simple steps, then it might not amount to
a disability
• However, it is a very surprising decision given
guidance
21. Can an employer simply adopt an occupational
health advisor’s opinion on disability?
22. Gallop v Newport City Council
Facts
• Mr Gallop worked for Newport City Council as a horticultural
training officer
• In 2004 he told them he was suffering with stress, with various
symptoms including lack of sleep
• He was referred to Newport’s external OH who reported he was
suffering from some stress related symptoms but there were no signs
of clinical depression
• Between 2005 and 2008 he was often absent from work for large
periods of time with what OH said was a stress-related illness linked
to his work
23. Gallop v Newport City Council
Facts
• The OH concluded that he was suffering from symptoms of
depression and stress but reported on two occasions that he
was not covered by the statutory definition of disability (but no
reasons were given)
• He then raised a grievance saying his GP had diagnosed him
with depression and that Newport had not taken sufficient
steps to ensure his health and safety at work
• He was dismissed in 2008 for historical allegations of bullying
• He brought an unfair dismissal and discrimination claim
24. Gallop v Newport City Council
Decision
• The Employment Tribunal:
– Found at a pre-hearing review that he was disabled
– Upheld his unfair dismissal claim
– Dismissed his discrimination claim
• The Tribunal held that Newport was entitled to rely on OH’s advice on
whether he was disabled and therefore did not have the requisite knowledge
to be obligated to make reasonable adjustments
• The EAT agreed
25. Gallop v Newport City Council
Decision
• The Court of Appeal overturned the tribunal and the
EAT
• The test is whether Newport had actual or
constructive knowledge of Mr Gallop’s disability
• They were not entitled to unquestionably rely on the
OH’s conclusion that he was not disabled
26. Gallop v Newport City Council
Decision
• The court said that OH should be expected to focus
on and engage with the statutory test for disability
• As it didn’t do so, the Court of Appeal said the report
was “worthless”
• The Court of Appeal held that responsible employers
have to make their own judgements as to whether an
employee is disabled
27. Do employers have to investigate discrepancies
in an occupational health report?
28. Donelien v Liberata UK Ltd
Facts
• Ms Donelien was employed by Liberata as a court
officer for nearly 11 years
• She was frequently absent from work due to
sickness
• She was dismissed in 2009 for her persistent short
term absences and failure to comply with the
absence notification period
29. Donelien v Liberata UK Ltd
Facts
• She clamed she suffered from a variety of medical
conditions, including hypertension and work-related
stress
• Before her dismissal she was referred to Liberata’s
occupational health service. It posed a number of
questions to ascertain whether there was any medical
condition that explained the pattern of absence.
• She had consulted her GP but refused to let the OH
service contact her GP
30. Donelien v Liberata UK Ltd
Facts
• The OH report stated that she was not disabled but did not
address the specific questions that Liberata had posed
• A follow up report was prepared but this did not sufficiently answer
the relevant questions either
• Liberata also made other efforts to investigate whether she was
disabled including ‘return to work’ meetings, as well as
correspondence with her and her GP.
• After she was dismissed she brought a claim for disability
discrimination and for failure to make reasonable adjustments
31. Donelien v Liberata UK Ltd
Decision
• The employment tribunal found she was disabled but there
was no duty to make reasonable adjustments because Liberata
did not have actual or constructive knowledge of disability
• The tribunal found that it was reasonable for Liberata to
conclude she was not disabled as:
– The advice from OH advisor was consistent with their own
knowledge
– Liberata had done all it could be reasonably be expected
to do to discover any disability
32. Donelien v Liberata UK Ltd
Decision
• The tribunal found her “attitude of confrontation and lack of co-
operation” and her refusal to allow the OH service to contact her
GP had been unhelpful
• The tribunal did express concerns over the sufficiency of the OH
report:
– The advisor had never met or spoken to Ms Donelien and the
report was based on a document review only
– The report focussed on the cause rather than effect of her
condition
– The report recommended a managerial rather than medical
solution
33. Donelien v Liberata UK Ltd
Decision
• The Claimant appealed to the EAT
• The EAT rejected the appeal holding that:
– In contrast to the Gallop case, Liberata had not relied
unquestioningly on the occupational health report.
Rather, it had made up its own mind.
– Liberata did enough to “escape” constructive knowledge
• Impact on the Fit for Work service?
34. Can an occupational health advisor’s knowledge
be imputed to an employer, even if the
information is not actually passed?
35. Imputed knowledge
• (The general principle is no)
• In Hartman v South Essex Mental Health and
Community Care NHS Trust 2005 the Court of
Appeal held that there was no basis upon which an
employer could be said to have the knowledge of the
confidential information disclosed by an employee to
the occupational health advisors
36. Imputed knowledge
“The fact that a doctor is a salaried employee gives no
other employee of that company any right of access to
medical records or to the details of examination
findings. With the employee’s consent, the employer may
be advised of any relevant information relating to a
specific matter on a strictly need to know basis, the
significance of which the employee clearly understands..”
If an employer explicitly or implicitly invites an
employee to consult the occupational physician, the
latter must still regard such consultation as strictly
confidential
37. Imputed knowledge
However:
• Opposite approach taken in the EHRC’s statutory
code of practice
• The Code does not impose legal obligations but can
be used in evidence in legal proceedings and tribunals
and courts must take into account any part of the
Code that appears to them relevant to the proceedings
38. Imputed knowledge
• An occupational health (OH) advisor is engaged by a large
employer to provide them with information about their
workers’ health. The OH advisor becomes aware of a worker’s
disability that is relevant to his work, and the worker
consents to this information being disclosed to the employer.
However, the OH advisor does not pass that information on to
Human Resources or to the worker’s line manager. As the OH
advisor is acting as the employer’s agent, it is not a defence
for the employer to claim that they did not know about the
worker’s disability. This is because the information gained
by the advisor on the employer’s behalf is attributed to the
employer
(para 5.18)
39. Things to consider
• The Codes goes on to say that information will not be
attributed to the employer if you are providing
services to workers independently e.g independent
counselling service
• ((We recommend that employers should ideally
ensure with you that there is a confidential and
suitable means (subject to employee’s consent) for
information sharing))
41. Are adjustments reasonable?
• Would the adjustment alleviate the disadvantage?
• Is the adjustment practicable?
• Is it “job-related”?
• What are the financial and other costs of making the adjustment?
• To what extent would it disrupt an employer's activities?
• What are the financial and other resources available to the employer?
• Is external financial or other assistance available?
• What is the nature of the employer's activities and the size of their undertaking?
42. Is an employer’s duty to make reasonable
adjustments triggered where an employee has not
given any sign that she would be returning to
work?
43. Doran v Department for Work and Pensions
Facts
• Mrs Doran worked for the Department for Work and
Pensions as an administrative officer
• She went off sick due to stress
• She provided medical certificates, but did not
suggest a possible return if adjustments were made
• She was offered administrative duties and part
time hours to support her return but never accepted
these
• She was dismissed a few months later
44. Doran v Department for Work and Pensions
Miss Doran brought a
claim alleging (among
other things) that DWP
had failed to make
reasonable adjustments
She said that the
suggestion they made
was unreasonable as a
demotion would have
reduced her salary
45. Doran v Department for Work and Pensions
• The employment tribunal held that DWP’s attendance policy placed
Miss Doran, a disabled person, at a substantial disadvantage
• Nevertheless, the tribunal rejected her claim
• The DWP's duty to make reasonable adjustments had not been
triggered because Miss Doran had not informed it of a return date
or given any other sign that she would be returning to work at a
particular time
• The EAT agreed
46. Doran v Department for Work and Pensions
Implications
• The duty on employers to make reasonable adjustments is
only triggered where an employee indicates:
– that they might be fit to return; OR
– that they would be fit if reasonable adjustments are
made
• Good practice to ask employee about reasonable
adjustments and discuss these with the employer
47. Does there have to be a good or real prospect of
a proposed adjustment removing a disadvantage?
48. Leeds Teaching Hospital NHS Trust v Foster
Facts
• Mr Foster was a senior security inspector employed by the Trust
• In October 2006 he went on long-term sick leave with stress
• ** In 2008, the Trust said Mr Foster should be placed on its
redeployment register to see if there was any work outside the
security department (since that was where the stress triggers
existsed) **
• He did not return to work and was eventually dismissed, on health
grounds, in February 2009
• He brought a claim for disability discrimination and unfair dismissal
49. Leeds Teaching Hospital NHS Trust v Foster
Decision
• The tribunal held that he should have been put on their
redeployment register earlier
• If they had, there would have been a “real prospect” or a
“good prospect” of his returning to work
• The Trust had therefore breached its duty to make
reasonable adjustments
• They appealed
50. Leeds Teaching Hospital NHS Trust v Foster
Decision
• The EAT held upheld the tribunal’s decision.
• It held that there was no need for the tribunal to go
as far as finding that there would have been a
“good or real prospect”
• A finding that there had been a prospect of the
proposed adjustment removing his disadvantage
would have been sufficient
51. Leeds Teaching Hospital NHS Trust v Foster
Impact
• The test of reasonableness will depend on a number of
factors
• Importantly, the fact that there is a prospect an adjustment
might remove a disabled employee's disadvantage (or
indeed, that it would certainly do so) does not necessarily
mean that the adjustment is reasonable
• It is for the employer to objectively test the
‘reasonableness’ of any step they may have to take
52. Is it reasonable for an employer to pay for an
employee to have private counselling?
53. Croft Vets Ltd and others v Butcher
Facts
• Mrs Butcher worked as a finance and reception manager at
a veterinary practice
• There was some concerns about her performance at work
• In 2010, two members of staff approached a manager
expressing concerns about Mrs Butcher, saying she was
“sitting in her office staring out of the window in tears”
• She met with her employer who offered her the opportunity
to continue with her current jobs under a performance
improvement plan or to narrow her job description with a
lower salary
• She then went off sick with depression and did not return to
work
54. Croft Vets Ltd and others v Butcher
Facts
• A GP recorded that Mrs Butcher had suffered from work-related
stress for two years, and had “classical depression”
• She was referred to a private consultant psychiatrist who
suggested that it was predominantly work-related stress that had
triggered the severe depressive episode
• He recommended that the employer pay for her to have sessions
in cognitive behavioural therapy and further psychiatric sessions
but there was no guarantee that her health would improve to enable
her to return to work
• She then resigned on 23 November 2010
55. Croft Vets Ltd and others v Butcher
Decision
• The tribunal upheld her claim for disability
discrimination and constructive dismissal claims
• In the tribunal's view, the employer should have
made the adjustments suggested by the
psychiatrist and paid for her to have private
psychiatric counselling and CBT
• Croft Vets appealed
56. Croft Vets Ltd and others v Butcher
Decision
• The EAT upheld the tribunal’s decision.
• ((It held that:
– The reasonable adjustments were sufficiently “job-
related”
– There were reasonable prospects that they would
be successful))
57. Croft Vets Ltd and others v Butcher
Impact
• In some cases the employer will be obliged to fund a disabled
employee's private medical treatment but this will be
dependant on the facts of the case
• It might well assist the employee in returning to and coping at
work, which is what reasonable adjustments are designed to do
• It might help to consider how much the employee’s health
problems are caused by the employer or by their work
• Remember, it for the employer to decide whether adjustments
are reasonable
59. Can an employee be dismissed for gross
misconduct when their actions relate to their
mental illness?
60. Burdett v Aviva Employment Services Ltd
Facts
• Mr Burdett had a paranoid schizophrenic illness
• He stopped taking his medication without medical advice and sexually assaulted
two female employees, and threatened to assault a security guard – so very serious
misconduct
• He was arrested and detained under the Mental Health Act 1983 and faced criminal
charges. He was then dismissed for gross misconduct
• The tribunal held that the dismissal could be objectively justified, as it was a
proportionate and necessary means for allowing Aviva to achieve its legitimate
business aim of maintaining appropriate standards of conduct in the workplace and
safeguarding its employees
• The EAT allowed the appeal – overturning the tribunal’s decision
61. Hensman v Ministry of Defence
Facts
• Mr Hensman had Asperger’s syndrome and was found to be covertly recording a
colleague in the shower area
• He was arrested and charged with various criminal offences and ultimately
dismissed
• The Crown Court judge – in relation to the criminal proceedings - was satisfied
that he suffers from “abnormality of the mind, Asperger's syndrome” and “was not
at fault for the offence”
• Disciplinary proceedings were instigated and Mr Hensman was dismissed.
• The tribunal found that that the MoD had subjected Mr Hensman to discrimination
arising from disability
• However, again, the EAT overturned the tribunal's decision.
62. Reconciling the two cases
• The fact they were decided differently shows it is a
complex area with no clear cut answers
• The tribunals should balance the discriminatory effect
on the employee against the legitimate business aim of
the employer - in both cases the EAT said it failed to do
so, but with different results....
• When dealing with an employee with a mental illness
culpability requires very careful consideration, and
employee’s mental health should be taken into account as
a mitigating circumstance
The Equality Act 2010 came into force on 1 October 2010. The Act sets out a technical meaning of "disability” for the purposes of UK discrimination legislation.
Arguably, the test doesn’t necessarily correspond with common perceptions of disability or indeed medical opinion.
The test comes in four parts, which may overlap to a certain degree.
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Relevant case law states that tribunals and courts should give a “purposive construction” to the legislation, which is designed to “confer protection rather than restrict it”.
The general trend in the EAT and the Court of Appeal has been to err on the side of finding the existence of a disability, and preliminary hearings on the question of disability became less common.
Therefore fair to say that the scope of disability discrimination protection is wide.
There are a couple of recent cases which have been pushing at the boundaries of the definition....
Some conditions are expressly deemed to be disabilities for EqA 2010 purposes (in which case the complexities of the definition are bypassed).... ^^^^
There are also a number of conditions which are expressly excluded.... ^^^^
Question arose recently in Europe as to whether obesity could fall within the definition of disability, thus giving rise to discrimination protection.
According to the Health Survey for England (HSE), currently 24.9% of adults in England (aged 16 years and over) are obese (HSE 2013).
Given the prevalence of employees who are overweight and potentially obese, this case was of great interest to our clients who are predominantly employers.
In answer to this question, the European Court of Justice held that there is no general principle of EU law prohibiting discrimination on grounds of obesity.
However, it held that obesity may fall within the definition of disability in certain circumstances – thus paving the way for obese workers to potentially bring discrimination claims.
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((In coming to its decision, the ECJ held that a worker’s obesity could qualify as a disability if it prevented them from being able to work on a basis equal to that of their colleagues. ))
The decision is an unsurprising one and accords with an earlier domestic decision we had in the Employment Appeal Tribunal in 2013 (Walker v Sita Information Networking Computing Ltd).
Interesting point is that Mr Kaltoft denied he was disabled, saying he could do his job exactly like others, and denying claims that he was too big to bend down to tie children's’ shoelaces....
Important point to take away from this case is that whether someone is disabled or not, does not depend on the cause of any impairment suffered, rather its effect.
It will now be necessary for employers – and OH - to assess when the limitations face by an obese worker meet the 4 part definition of disability. In which case, various legal obligations arise - in particular the requirement to make reasonable adjustments to working practices and/or premises. Ultimately, it will depend on the particular circumstances.
((Actually, this decision has the potential to produce odd results. For example, there may be cases where there are two workers of equal weight – one is able to perform the functions of his role, but the answer is not. One would be regarded as disabled yet the other would not. Therefore, it would be unlawful disability discrimination if the employer were to permit the “disabled” worker to be harassed by co-workers about his weight. Yet the same behaviour towards the “non-disabled worker” would not amount to unlawful disability discrimination, despite the fact that they are the same weight. ))
In the oil and gas sector, this area has generated much publicity alongside the Civil Aviation Authority (CAA) review and recommendations which has, from April 2015, prohibited operators from carrying passengers on offshore flights whose body size is incompatible with the push out window emergency exit size. This is not about obesity as such, but rather physical dimensions.
If an employee was deemed to be disabled, it is highly unlikely that a Tribunal would require an employer to find an alternative mode of transport for the employee. However, it may find that a reasonable adjustment would to assist the employee to reduce their physical size if possible. Ultimately depends on what would be deemed to be ‘reasonable’.
In the news last week that diabetes levels in Scotland at an all time high (BBC news – 15 June)
Diabetes Scotland said the number of people registered with the condition reached an all-time high of 276,000 last year – with type 2 diabetes accounting for at least 90% of all cases.
Also, further to the last case, there is apparently a seven times greater risk of diabetes in obese people compared to those of healthy weight.
By way of background, when the EQA came into force, the Government issued guidance on matters to be taken into account in determining questions relating to the definition of disability.
In particular, it suggests (B7) that account should be taken of how far a person can reasonably be expected to modify their behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment. In some instances, a coping or avoidance or strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability.
However, it goes on to say (B12) that where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect (therefore potentially a disability) if, but for the treatment or correction, the impairment is likely to have that effect.
In other words, the treatment or correction measures (such as medical treatment, other aids, or the need to follow a particular diet) are to be disregarded when assessing whether employee is disabled.
Against this backdrop, this case produced a surprising decision.
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The tribunal held that this was equivalent to a medical treatment, and that without the treatment, the employee's condition would meet the definition of a disability. This would seem to accord with the EQA guidance.
However, the EAT overturned this decision.
It found that mere abstention from sugary drinks could not be regarded as a "diet" and therefore could not constitute "treatment“.
It is surprising that at no stage did any party refer the EqA 2010 guidance, which seems to expressly address this point (B14): it says.....
"...the case of someone with diabetes which is being controlled by medication or diet should be decided by reference to what the effects of the condition would be if he or she were not taking that medication or following the required diet.“
I would have thought that that abstaining from fizzy drinks is exactly the kind of "diet" that the guidance envisaged in relation to diabetics.
Arguably this case confuses the measures taken to avoid the impairment, with the effect that the impairment would have if those measures were not taken – which is the important point.
Of course, this decision may be overturned by a higher court in the future. However, in the meantime, it should not be assumed that all individuals with a diet-controlled condition are incapable of satisfying the definition of a disabled person under the EqA 2010.
Rather, the correct approach should be to assess the question of whether an employee with any of these particular conditions is disabled in the usual way, by applying the statutory definition of disability with reference to the statutory guidance.
Only the smallest adjustments should fall within the category of items deemed too small to amount to a treatment or correction.
An employer has a duty to make reasonable adjustments for an employee where it knows – or could reasonably be expected to know – that the employee is disabled.
Where the employee has a clearly diagnosed condition and has told his employer about it, there will be no question as to the employee’s knowledge.
However, often employees prefer to keep their disabilities private – or they might not have an official diagnosis or even be aware of their disability.
In these circumstances, it may be difficult for an employer to know whether they have a duty towards an employee....
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No – case law dictates that an employer must apply their own mind and make its own factual judgement of whether an employee is disabled.
Whilst medical opinion will be relevant, it cannot be used by an employer to hide behind.
This makes sense as ultimately whether an employee will be regarded as disabled or not – at least for the purpose of discrimination protection - is ultimately a legal question for a tribunal to decide.
In this case, the employee was referred to OH on a number of occasions between 2005 and 2008.
OH concluded that Mr Gallop was suffering from symptoms of depression and stress but that he was not covered by the Disability Discrimination Act 1995 (the predecessor to the EQA – in essence the tests under both are the same).
SKIP
The Council had admitted that Mr Gallop suffered from a mental impairment but argued that he had not been diagnosed with a mental impairment which had substantial long term adverse effect on him. It therefore denied that it had any duty to make reasonable adjustments.
The tribunal held that unless the Council had good reason for forming a different view, it was entitled to rely on OH’s advice as to whether or not he was disabled. In the tribunal’s view, if OH advice was that Mr Gallop was not disabled (even if he was actually disabled) the Council did not have the requisite knowledge to trigger its duty to make reasonable adjustments.
The EAT agreed with this approach and upheld the decision.
Interestingly, the case went all the way up the judicial ladder before the decision was overturned.
The Court of Appeal held, unanimously, that the task for the employment tribunal was to decide whether the Council had actual or constructive knowledge that the Mr Gallop was a disabled person.
The Court of Appeal held that the Council could not deny knowledge simply by unquestionably and blindly relying on the OH reports.
Can be difficult for employers. Would be criticised for not obtaining medical input or not following it if the advice suggested the employee was disabled.
Equally, however, an employer can be also criticised for relying too heavily on medical advice, if the facts suggest otherwise. ...
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No, was the answer in a recent case – in which the EAT held that where an employer had not investigated discrepancies in the occupational health report - but importantly had taken other reasonable steps to ascertain whether an employee was disabled – the employer had (when viewed as a whole) taken sufficient steps to avoid having constructive knowledge of the employee’s disability.
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In her final year she was absent on 20 separate occasions amounting to 128 days of absence.
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((Six questions were:
“i) Provide us with an update on Edith's general health?
ii) Confirm whether Edith has any medical condition that explains this pattern of absence?
iii) Confirm whether Edith's condition affects her ability to carry out her duties or necessitates time off work and if so to what extent?
iv) Confirm how long this condition is likely to last and whether she is likely to be able to render regular service in the future.
v) Confirm whether Edith has a condition which would be recognised as a Disability under the Disability Discrimination Act
vi) If so confirm whether there are any reasonable adjustments that you recommend.”))
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This case is reassuring for employers dealing with persistent short-term absences and difficult employees. It confirms that an employer does not need to have taken every step possible to discover an employee’s disability in order to avoid having constructive knowledge of it.
Arguably, the tribunal had some sympathy with the employer in this case as the employee had been quite obstructive when Liberata was trying to establish the extent of its duties.
The EAT did not comment on the tribunal’s concern at the occupational health advisor reaching conclusions without having met or spoken to the employee. If this were an issue it would have significant implications for the new Fit for Work service, as it anticipates the OH contacting the employee to make an assessment by telephone and a face-to-face assessment expected to be necessary only in a minority of cases
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No, according to case law,
but interestingly this conflicts with statutory guidance!
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In coming to his decision, the judge quoted Medical Ethics Today (published by the British Medical Association)...
However, the case is interesting as it is at odds with the Equality and Human Rights Commission’s Statutory Code of Practice.
The Code does not impose legal obligations but can be used in evidence in legal proceedings and tribunals and courts must take into account any part of the Code that appears to them relevant to the proceedings
The Code states that because the OH advisor is acting as the employer’s agent, it is not a defence for the employer to claim that they did not know about the worker’s disability.
This is because the information gained by the advisor on the employer’s behalf is attributed to the employer
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In general, discrimination legislation places negative duties on employers i.e. requiring them to refrain from doing something.
The one exception to this is the duty on an employer to make reasonable adjustments – which is unique to the protected characteristic of disability.
Where the duty arises, the employer must effectively treat the disabled person more favourably than others in an attempt to reduce or remove the individual’s disadvantage.
Reasonableness of adjustments
An employer will not breach the duty to make adjustments unless it fails to make an adjustment which is "reasonable". This is a fact-sensitive question, depending on a number of factors as set out above.
The test is an objective one and one that is determined by the tribunal. This is a rare example of legislation that requires tribunals to substitute their own opinion for that of the employer and to decide if the employer's time and resources should be spent in a particular way.
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No.
In the recent case of Doran v DWP the EAT held that an employment tribunal was entitled to find that an employer’s duty to make reasonable adjustments was not triggered where a sick employee had not given any sign that she would be returning to work.
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Under the DWP's attendance policy, it was rare that absences would be supported if there was no indication of a return to work within six months.
The policy resulted in her dismissal following an inability to achieve satisfactory attendance levels and return to work within what the DWP considered a reasonable period of time.
Miss Doran brought various tribunal claims, including one that the DWP had failed to make reasonable adjustments.
In her view, the offer of a four-week phased return was not reasonable, considering that she had been unwell since January 2010. Further, she did not think that it was reasonable for the DWP to demote her and thus reduce her salary.
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The EAT rejected Miss Doran's appeal and found that the tribunal had been entitled to find that the duty to make reasonable adjustments was not triggered because Miss Doran had not become fit to work even if adjustments were made.
Further, the EAT decided that the tribunal had been entitled to find that the ball had been in Miss Doran's court to raise the issues of a lower grade role with a phased return when she became fit to do some work.
Arguably this was a strange point to conclude. The legislation places no onus on a disabled person to make suggestions. Rather, the duty to make reasonable adjustments falls on the employer (even if it is good practice for them to consult with the employee).
((Under the EQA, employees now have the opportunity to bring a claim for “discrimination arising from a disability”. The EAT has recently suggests that cases involving poor attendance may now be better analysed as claims for discrimination arising from disability (or indeed indirect discrimination) rather than failure to make RA.))
Turning now to the nature of the adjustment ..... Does there have to be a good or real prospect of a proposed adjustment removing a disadvantage?
No
Case law dictates that an adjustment might be reasonable - and therefore required - where there is only "a prospect" that it will succeed.
Previous case law suggested that there had to be “real prospect” that a proposed adjustment would have removed the disadvantage experienced by the disabled employee. However, the EAT has now held that a lower threshold is appropriate.
However, if there is “no prospect” of it alleviating the disadvantage in question, the adjustment does not require to be made - as it would only amount to a futile gesture.
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It is normally wise for an employer to consider obtaining an expert opinion on the likely effectiveness of any proposed step.
When considering whether an adjustment will work, it is important for an employer (and therefore helpful for OH) to identify, precisely, the effect that an adjustment is attempting to avoid.
However, the prospect of success does not have to be good or real, the threshold is lower. It is clear now that all that is required is that there is a prospect of success.
Is paying for an employee with work related stress and depression to have to have private psychiatric counselling a reasonable adjustments under the Equality Act 2010?
Yes, in certain circumstances - held the EAT in this case.
This is an interesting case as you wouldn’t think that the provision of private medical care would be the employer’s responsibility. However, in this case there would found to be a sufficient nexus between the treatment and the impairment it was trying to address.
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The EAT accepted the submission that the adjustments were job-related as they involved payment for a specific form of support to enable the Claimant to return to work and to cope with the difficulty she had been experiencing at work.
The medical evidence was that the Claimant was suffering from predominantly work-related stress. There were reasonable prospects (so actually beyond just a prospect) that if the advice was followed and the reasonable adjustments adopted they would be successful. This is well above the threshold set by the earlier case of Leeds.
A decision that an employer was obliged to fund a disabled employee's private medical treatment might seem surprising and highlights the extent of the obligation on employers.
But, the EAT emphasised that this was not a case about employers generally being obliged to pay for private health care. Simply, the tribunal had been entitled to find a breach of the duty on the facts of the case. It was clearly key that the employee's health problems were to a large extend caused by her work.
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Two recent cases were decided differently – which is testament to it being a difficult question and one that will likely depend upon the circumstances.
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((In 2008 he had also discontinued his medication (on medical advice this time) but was admitted to hospital following hallucinations and sexually assaulting members of the public – did not disclose this to employer
Stopped taking them again in 2010 (without medical advice) and in 2011 sexually assaulted two female employees and threatened to assault a security guard and assaulted a member of the public and attempted to assault another.
He accepted the incident had taken place and that he “made a serious error of judgement” by stopping his medication.
The disciplinary manager took into account the failure to disclose the earlier assualt and the risk he could stop taking his medication again in the future.
The tribunal held that dismissal could be justified but the EAT allowed the appeal and invited the parties to make further representations as to disposal of the matter. This is the first time PLC have come across a decision like this.))
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((During the search, video footage and still images were found of a man in various states of undress, and sometimes naked, in the shower area of the shared accommodation where Mr Hensman had lived. The man in the video was another MoD employee. It transpired that Mr Hensman had recorded the images and footage covertly by hiding a camera under a towel.
The Crown Court judge accepted there was a link between Mr Hensman's disorders and his actions in recording the offending footage. But Mr Hensman had not recorded the images for sexual gratification, but because of a "certain fascination" arising from his disorders. On that basis, the sexual offences for which Mr Hensman had been prosecuted were dropped. Nevertheless, Mr Hensman pleaded guilty to the lesser offence of outraging public decency. The judge stated that he would take Mr Hensman's disorders into account when sentencing him, and imposed a three-year community order.))
The EAT accepted the MOD’s argument that the tribunal had erred in finding that Mr Hensman’s dismissal was not proportionate. In conducting the appropriate balancing exercise, the tribunals should have assessed the particular considerations weighing on the MOD’s mind. These were not confined to the fact that Mr Hensman had been convicted of a crime, but also relevant to questions of breach of trust and the fact that Mr Hensman’s conduct had been covert. The tribunal had erred because it had not analysed the MOD’s business needs in context.
Accordingly, two cases with almost opposite results.
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The interplay between misconduct and an employee’s mental health is a difficult area where further guidance is needed. No doubt we will see more case law in this area in the future.
