As high profile employers from Starbucks to Newcastle United face disability discrimination claims, what do employers need to know about disability discrimination?

What employers need to know about disability discrimination

In this blog we look at what employers need to know about disability discrimination and answer your frequently asked questions.

over recent years we have reported on several high profile claims faced by employers for disability discrimination, from an employee suffering with dyslexia who was successful in a disability discrimination claim against Starbucks, to an ex-Newcastle United midfielder who won a claim after being frozen out from the club following a cancer diagnosis.

These cases demonstrate that disability discrimination can be a minefield for employers and careful handling is often required. We deal with many cases involving disabled employees and the working relationship is often positive and successful. Many situations can be dealt with successfully if employers are aware of their obligations, and work together with the employee to resolve issues when the arise.

Who is protected from disability discrimination?

Disability is a protected characteristic under the Equality Act 2010 and is defined as a physical or mental impairment which has a substantial and long-term adverse effect on the individual’s ability to carry out normal day-to-day activities. To be long-term the impairment must:

• have lasted at least 12 months; or
• be likely to last for 12 months or more.

Employers also need to be cautious where a person has a condition that is likely to recur.

Certain conditions are deemed to be disabilities from day 1 including cancer.

In addition to current employees, the law also protects job applicants. Unlike unfair dismissal claims there is no minimum service requirement to bring a disability discrimination claim.

How should an employer assess whether someone is disabled under the Equality Act 2010?

If you as an employer are in any doubt as to whether one of your employees might be disabled then you may need to obtain medical and/or legal advice (the test for disability is not one solely for a doctor).

• Firstly, you will need to establish whether they have a physical or mental impairment. For example, diabetes is a physical impairment.
• Then you assess whether that impairment has a substantial (more then minor or trivial) impact on their day to day activities, such as sleeping, walking, writing, driving. Importantly when you consider the impact you discount the impact of any treatment, for example, if they are taking medication to manage their symptoms, you look at the impact without this medication.
• Finally, you assess if the impact is long term –has it already lasted or is it likely to last for 12 months or more.

Once you are aware that an employee is disabled, how you accommodate them and the adjustments you make will be crucial in avoiding any disability discrimination complaint.

What types of disability discrimination claims can employees bring?

There are many forms that disability discrimination can take. A few examples are:

Direct disability discrimination

This occurs when an employer treats an employee less favourably than others because of his/her disability. This was the case for Jonas Gutierrez and New Castle United. Direct discrimination cannot be justified by an employer.

Indirect disability discrimination

Employers can also indirectly discriminate against disabled employees. This occurs when they apply a provision, criteria or practice (PCP) which puts the disabled employee at a disadvantage and the employer cannot justify the PCP. Employers can only justify making the PCP if they show it is a proportionate means of achieving a legitimate aim.

Failure to make reasonable adjustments

The Equality Act 2010 imposes a duty on employers to make reasonable adjustments to working practices or even premises to help disabled employees. Failure to do so is a form of discrimination. It is important to note that an employer is only obliged to consider reasonable adjustments if it knows or ought reasonably to know that the individual is disabled or at a substantial disadvantage because of their disability.

Is perceived disability discrimination protected?

It is clear that the Equality Act 2010 permits claims where the employee does not have a protected characteristic themselves, but an alleged discriminator perceives them as having that protected characteristic. For example, it would be unlawful to harass an employee on the basis of a perceived belief that they are gay, even if they are not. However, claims for perceived disability discrimination are more complicated due to the need to meet the definition of disability to be able to bring a claim.

There has been one example of a case being brought based on the employer’s incorrect perception that an employee’s condition would become a disability in future, rather than them being disabled at the time.

The case was brought by Mrs Coffey, who was a police constable. She had a degree of hearing loss that placed her just outside national standards for hearing loss for the police. The Home Office laid down National Recruitment Standards which included Medical Standards for Police Recruitment. There was a standard for hearing loss. However, the Wiltshire Constabulary arranged a practical functionality test for Mrs Coffey, which she passed. This allowed her to work as a constable in the police force.

Following this, Mrs Coffey then applied to transfer to the Norfolk Constabulary. She underwent a hearing test which recorded that she had the same level of hearing loss as previously identified. The Acting Chief Inspector (ACI) for Norfolk however rejected Mrs Coffey’s application. This was on the grounds that she did not meet the national standards on hearing. Significantly, The Norfolk Constabulary did not arrange a practical functionality test. She brought a claim for disability discrimination.

Her claim was successful. The Employment Appeal Tribunal accepted that the ACI perceived that Mrs Coffey’s condition could well progress to the extent that she would need to be placed on restricted duties in the future. The ACI had therefore perceived that Mrs Coffey had a disability in the sense of a progressive condition. In other words, even if he felt that she did not have a disability, he thought it would become a disability in due course.

This case confirmed that in cases of perceived discrimination, the Tribunal will decide if the accused perceived the person who was subjected to the discrimination as having the substantial impairment in line with the definition set out in the Equality Act 2010. In this case, it was the employer’s perception that the condition would deteriorate in the future and would, therefore, amount to a disability, that gave rise to the liability for direct discrimination.

What publicity can result from a disability discrimination claim?

A good example of the bad publicity that can result from a disability discrimination claim is the case bought by Ex-Newcastle United midfielder Jonas Gutierrez.

Gutierrez, 32 years of age, was diagnosed with testicular cancer in October 2013. He had been a regular and important first team player for the Tyneside club. The player claimed that he was “frozen out” by the club following his diagnosis and that the club saw him as a liability following his return from treatment. The Employment Tribunal discovered that Newcastle United prevented Gutierrez from playing to avoid having to give him a contract-extension.

The Tribunal found that the player had been a mainstay in the first team line-up for the years preceding his illness. The ruling stated that “just over two weeks after the player returned to the club in November 2013 following his diagnosis and treatment, and at a point when he was match fit and returning to action, he was told he no longer featured in the club’s future plans. They concluded that the decision to drop Gutierrez was because of his cancer”. The Tribunal surmised that “the reason why Newcastle United managed Gutierrez’ selection was because they no longer wanted him at the club because of his cancer”. This finding of direct discrimination caused significant bad publicity for the club.

What if an employer becomes aware of a disability after dismissal?

Employers have to be alert to potential disabilities of employees, even if they become aware of a disability post termination.

An example of this type of claim was a claim bought by an employee, Mrs Baldeh. She was employed by a housing association which was responsible for providing housing to vulnerable young people. During her probationary period, various concerns were raised about her performance and she was dismissed following a probationary review meeting. An appeal was then lodged by Mrs Baldeh. During the appeal, she raised that she had longstanding depression. The appeal was upheld and Mrs Baldeh was dismissed.

At first instance, the Employment Tribunal dismissed Mrs Baldeh’s claim. Although it was agreed that she had depression which amounted to a disability, it was not found that the employer had knowledge of her disability at the time of dismissal. The evidence indicated that the employer only became aware of the disability post termination at the appeal hearing.

The Employment Tribunal also found that there was no evidence that her poor performance was connected to her disability and that her dismissal justified as it had a legitimate aim in ensuring communication standards were met when working with vulnerable individuals.

The Employment Appeal Tribunal, however, disagreed. It found that the Tribunal should have contemplated whether the appeal decision was discriminatory and should have considered this as part of the overall decision to dismiss. The employee had provided evidence that her communication was influenced by her disability. The Tribunal therefore needed to carefully consider this and failed to do so.

The key message from this case for employers is to be mindful that if an employee brings up a disability in an appeal hearing, this needs to be looked at carefully. An appeal needs to consider this as well as the other information gathered in making the dismissal decision or the employer could find themselves faced with a disability discrimination claim.

When can an employer issue a warning for disability related absence or performance concerns?

It would be direct discrimination to issue a warning to an employee because they are disabled. However, if an employee cannot do their job because of their disability, or are expected to be on long term sickness absence the employer can follow a capability process.

Before starting a formal process the employer must ensure that they have made reasonable adjustments to support the employee. They should also make reasonable adjustments to the capability process itself. For example, adjustments could include increasing the normal trigger points for a review of absence and adjustments enable the employee’s attendance at meetings.

When should employers seek occupational health advice?

Employers will usually need occupational health to provide advice where an employee’s health is affecting their performance at work, or they have had high levels of sickness absence. Occupational health can provide advice on the nature of the employee’s health condition, the impact on their day to day activities and how long this impact is likely to last for – which can in turn help the employer assess whether the employee meets the definition of a disabled person. They can also provide advice on the adjustments that may assist the employee to work, from a phased return plan to work to longer term adjustments.

When is an employee entitled to reasonable adjustments as a result of their disability?

Employers must make reasonable adjustments when they know or could reasonably be expected to know, someone is disabled and they are aware that the employee is suffering a disadvantage at work as a result of their disability.

This could arise because a disabled member of staff specifically asks for an adjustment. Alternatively, this could arise because the employer has become aware a disabled member of staff is having difficulty with a part of their job, even if a specific request hasn’t been made. For example, where an employee is struggling with their performance, the employer should consider adjustments to assist.

What type of reasonable adjustments are employers required to make?

These depend on the circumstances. The employer must take such steps as it is reasonable to take to avoid the disadvantage. The employer’s obligation can also arise where a disabled person would, but for the employer’s provision of an auxiliary aid, be put at a substantial disadvantage in comparison with those who are not disabled.

When considering whether an adjustment is reasonable the Tribunal will take into account both the extent to which the adjustment will address the disadvantage and the financial and other resources available to the employer.

A good example of a reasonable adjustments claim is the case brought against Starbucks. In the case Meseret Kumulchew was a supervisor at a branch of Starbucks and was responsible for taking the temperature of fridges and water at specific times and entering the results in a duty roster. She was accused of falsifying the documents after erroneously entering incorrect information.

Meseret Kumulchew was given fewer duties at her branch in Clapham Junction, London and was informed she would need to retrain. This left her feeling suicidal. As a result, she took Starbucks to an Employment Tribunal alleging disability discrimination, claiming she had always disclosed to her employer that she was dyslexic and suffered with problems at work.

The Employment Tribunal found Starbucks had failed to make reasonable adjustments for Ms Kumulchew’s disability as, instead of finding ways to support her and assist her in fulfilling her duties, they accused her of falsifying records and treated her unfavourably. They had therefore discriminated against her because of the effects of her dyslexia and her ability to carry out her day to day duties at work.

What are employers’ obligations if employees don’t disclose health conditions or are unaware of these?

Employers are only required to make reasonable adjustments if they know or should reasonably know about the employee’s disability. If an employer is entirely unaware of the employee’s health condition it therefore isn’t required to make reasonable adjustments. However, employers are expected to act reasonably to find out if an employee has a disability. If an employer becomes aware that the employee is struggling to undertake their role, is suffering from ill health symptoms or has high absence levels, they are expected to enquire further and could be deemed to have constructive knowledge.

Is dyslexia a disability and what support should employers provide for dyslexic employees?

Dyslexia, like many medical conditions, is part of a spectrum and may be mild or much more serious. Whether dyslexia is deemed to be a disability under the Equality Act 2010 definition will be dependent upon the severity of the individual’s condition. If it has “substantial” affects on his/her ability to carry out normal day-day activities then it will likely be a disability. If not, then likely it will not be. This is an area where each case will need to be reviewed on its own facts.

Dr Kate Saunders, CEO of the British Dyslexia Association, has previously said: “Many dyslexics are struggling in the work place with very high levels of anxiety because employers do not have the training or the awareness to make adjustments for them.”

Reasonable adjustments should be made for dyslexic employees where applicable and thorough thought given by employers as to how they can help their disadvantaged employees in their day to day duties at work. Where an issue arises at work it is important that employers carry out a proper investigation and seek advice if they believe that there may be a connection to a medical condition.

Seeking specialist legal advice at an early stage is recommended for employers to act appropriately and in accordance with the law. A specialist employment solicitor will be able to guide you through difficult issues regarding disabilities and discrimination and this might be the difference between treating employees lawfully and respectfully and having a claim brought against you in the employment tribunal.

If you are an employer (or employee) and have any questions regarding disabled employees, then please feel free to call our Employment team here at Paris Smith LLP for advice.