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Disability Discrimination-recent cases update

31st October 2018

Disability discrimination cases have, according to the Tribunal Service’s latest figures, become the type of claim with the highest average compensation level. This alone makes developments in this area of law important for employers and individuals to understand.

In this article we consider two recent cases that deal with issues that often cause problems. The first case deals with the subject of the basic definition and requirements that amount to a disability. The second deals with the subject of drawn out internal procedures relating to a disabled employee and the question of whether that treatment amounted to unlawful discrimination.

The first case, Martin v University of Exeter examines a common situation which causes problems. The statutory definition of a condition that amounts to a “disability” includes a condition that has lasted for 12 months or longer at the date of the act of discrimination, or a condition that is likely to last for 12 months or more. These are the requirements for the condition to amount as being “long-term” as required under section 6 the Equality Act 2010.

Problems are often found by employers in ascertaining if a worker should be regarded as covered by the disability discrimination law, with the impact of the obligation to make reasonable adjustments for those workers to their workplace and, or work practices. In our experience, the issues in this case are of common concern for employers in regard to workers that have mental health problems.   

The case concerned an employee that suffered from post-traumatic stress disorder after having witnessed the distressing sight of a student that was trying to hang himself. He developed anxiety and stress-related conditions. In the Employment Tribunal some evidence of the medical issues had been presented, including some medical notes from a GP, some evidence from an Occupational Health practitioner together with the oral evidence of the claimant and his wife. In order to succeed with a claim of disability discrimination the Tribunal needed to ascertain when the condition started. The evidence he presented was consistent in confirming he suffered under the condition, but not clear and consistent as to when the condition started and if the condition was likely to last for 12 months of more at the time the discrimination took place.  

A preliminary hearing was held to determine the date on which the individual’s disability began and when it became a long-term condition. The established case law indicates that in deciding if a condition was likely to be long term must be assessed predictively. In other words, the fact that an individual has actually been impaired for 12 months by the time of the hearing in the Employment Tribunal does not mean they were protected by the disability discrimination legislation at the date of the alleged incident of discrimination.

If the impairment is not long-term as at the date of the alleged incident of discrimination they then need to establish that the impairment is likely to be long-term. The case law indicates that the test for this is simple to decide if it “could well happen.” The courts have indicated that this is not the same as saying it is 51% likely to happen. The test of “could well happen” is a lower standard. In the Employment Tribunal in the Martin case the Employment Judge had referred to the question of whether or not the condition would “necessarily” be predicted to last for over 12 months. The matter was further argued in the Employment Appeals Tribunal, when the question arose of whether the Employment Judge has used the correct test in using the words “necessarily predicting” instead of “could well happen.”   

An absence of a distinct expert medical report on the condition presented a clear problem in this case. In the earlier case of Morgan v Staffordshire University, the Employment Appeals Tribunal had noted that the burden of proof on establishing a disability is on the shoulders of the claimants. It went on to comment that, although there is no rule of law that the burden of proof can only be met by producing expert evidence, it will be very difficult to establish that there is a disability in relation to mental health issues without expert evidence.

The Employment Appeals Tribunal confirmed that the correct test is the “could well happen” test. This does not contain an obligation to demonstrate certainty. The case does indicate that the approach to conditions and the likely duration of conditions can pose a significant problem for individuals and employers. The case illustrates the fact that clear medical evidence is very important in establishing disability in this type of case. Employers and individuals should note that obtaining clear medical evidence to establish the possibility of the duration of a health condition is important in handling a claim of disability discrimination, particularly in cases relating to mental ill-health.

The second case relates to the common situation where an employer handles an internal procedure poorly, taking a long time over its completion, and the effect of this on a person with a disability. The case of Dunn v Secretary of State for Justice involved a prison inspector. Mr Dunn had become ill with depression and a serious heart condition. As a consequence of his ill-health he applied for an ill-health retirement. This involved instigating the employer’s ill-health retirement procedure. The employer took a very long time in dealing with the procedure. Mr Dunn claimed that the way in which the procedure was handled amounted to disability discrimination against him.

The Employment Tribunal found in favour of Mr Dunn, but the decision was overturned by the Employment Appeals Tribunal. The case was then appealed to the Court of Appeal.

In its ruling, the Court of Appeal criticised the handling of the procedure, noting it was “unnecessarily bureaucratic.” In the hearing the employer accepted that the process had been badly handled, and it was accepted that this had distressed Mr Dunn. However, the Court of Appeal ruled that there had not been any direct disability discrimination against Mr Dunn. The court noted that the Employment Tribunal had not considered the motive of the decision-maker, ie whether or not Mr Dunn’s disability had affected their decision by causing them to act, or fail to act, in the manner complained of.

The Court of Appeal ruled that if a claimant cannot show a discriminatory motive on the part of the decision-maker, the claimant can only satisfy the “because” requirement of the legislation if the treatment in question is in fact inherently discriminatory. It was clear that in this case, while it was obvious that the process was poor and “unnecessarily bureaucratic” it did not follow that it was inherently discriminatory. This case illustrates that a poor and unwieldy procedure is not necessarily discriminatory in itself- even if it is objectively a poor and protracted procedure. The case does indicate that employers should deal with internal procedures promptly and fairly. We also wonder what the outcome would have been if the case had been presented on the basis of a failure to make reasonable adjustments, ie adjustments that shortened and eased the process for Mr Dunn- being disabled.

The two cases highlighted indicate that employers and individual still experience a range of problems in both understanding some of the basic provisions of the disability discrimination legislation, and dealing with the challenges posed by mental health illness in particular.

We can help employers understand and implement their obligations with regard to any worker that is or may be disabled. The use of practical policies is always a good starting point, but it is equally important for managers to understand and implement those procedures fairly.                 

If you need any further advice on any matter raised in this article do not hesitate to contact us at Hallett Employment Law Services Ltd.

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