Disability Discrimination Law- Recent Developments

In the last few months there have been a number of interesting cases in the appeal courts on the subject of disability discrimination, which will have an impact on the way in which employers need to address this issue in the workplace.

This article covers a number of the more significant cases on this subject that have arisen since we published the news item dated 12^th December 2008  “ Disability discrimination- latest developments.”

Disability Discrimination and the duty to make “reasonable adjustments”

There have been a couple of recent cases addressing the duty to make reasonable adjustments. In the case of Shaw &Co v Atkins the Employment Appeals Tribunal ruled that in considering whether a particular adjustment was reasonable an Employment Tribunal must take into account the financial and other costs of the proposed adjustment in determining whether or not that particular adjustment is “reasonable.” This is a factor that is common in considering the duty to make reasonable adjustments. The case highlights the need of employers to look at all the relevant factors in considering any possible adjustments for a disabled employee. Employers must note that issues of cost alone will not necessarily determine whether any adjustment is reasonable or not, but that they can be considered amongst the other factors relevant to the particular case.

When is an employer exempt from the duty to make reasonable adjustments?

An employer will be exempt from the duty to make reasonable adjustments (typically during a recruitment and interview process) if it did not know that the particular person was, or might be, disabled.

In the recent case of Eastern & Coastal Kent PCT v Grey the Employment Appeals Tribunal ruled that in order to obtain this exemption an employer must establish ALL of the criteria specified in the Disability Discrimination Act (as opposed to simply establish one of them). The criteria are that the employer:-

(a)    Does not know that the disabled person has a disability,

(b)   Does not know that the disabled person is likely to be at a substantial disadvantage compared with persons who are not disabled,

(c)    Could not reasonably be expected to know that the disabled person had a disability, and

(d)   Could not be reasonably expected to know that the disabled person is likely to be placed at a substantial disadvantage in comparison with persons who are not disabled.

This case involved an individual that has dyslexia. On an application form which asked if the applicant was disabled she stated that she was not disabled; but subsequently stated that she had a “learning difficulty/disability.” The members of the interview panel were not informed that she had any disability, and remained unaware of it throughout the recruitment process. On being asked if she needed any special arrangements for and during the interview she replied “no”, as she felt confident in her skills and abilities, and did want to risk the panel taking an unfavourable opinion of her if she were to tell them of her disability. The interview took the form of a 10 minutes presentation on a subject which had been explained in the invitation for the interview. She was given a low score for the presentation. She was then given a low score for her response to the set question posed to all the interviewed candidates. It was accepted at the Employment Tribunal that the low score in answering the set question was due to the fact that she misunderstood the question. The expert evidence in the case was that she needed more time than others to read and assimilate information (due to her dyslexia).

In this case the Employment Appeals Tribunal concluded that in rejecting her claim of disability discrimination the Employment Tribunal had failed to address all of the elements involved in establishing the statutory exemption (as outlined above).

The practical implication is that employers should make full and proper enquiries of job applicants on the question of the need to make any adjustments to the recruitment and interview process. Naturally it is true, to an extent, that employers should be able to rely on the information given by the applicant, but if there is anything that would lead an employer to making further enquiries, or an issue becomes apparent at interview, then it should consider if any adjustment to the process may be necessary for the applicant.

 Disability – related discrimination

In the news item in December we referred to the controversial decision of the House of Lords on the identification of the correct “comparator” required in this type of case ( also see our free Factsheet on “Disability Discrimination” for an explanation of this issue).The case heard by the House of Lords was about housing law. There was some debate as to whether the decision in that case would affect the disability discrimination law in the field of employment rights. That debate has been ended by the Employment Appeals Tribunal in the case of Child Support Agency (Dudley) v Truman. In this case the employer appealed against the decision of the Employment Tribunal, which had ruled in favour of the claimant, using the old comparator test. The representative of the claimant argued in the Employment Appeals Tribunal that the recent ruling of the House of Lords on the identification of the correct comparator did not apply in employment cases. The Employment Appeals Tribunal rejected that argument, noting that the wording in the relevant sections of the Disability Discrimination Act in the parts dealing with housing and employment are identical on the point in dispute, and so the interpretation applied by the House of Lords to a housing case must also apply to an employment law case.

It remains to be seen if the Government will introduce a form of “indirect” disability discrimination through the new Equality Act, which will go some way to restoring the old position. In the meantime, this case highlights the fact that it is now much easier for employers to successfully defend claims of “disability –related” discrimination. 

If you require further information or advice on any of the matters raised in this article, please do not hesitate to contact us.