disabilityLast week I posted a short piece on the duty to make reasonable adjustments and thought a follow up piece on other the other main reasonable adjustment related claim in the Equality Act. In the aftermath of the House of Lords decision in Malcolm Parliament introduced a new type of discrimination in section 15 of the Act, the main provision of which reads:

(1)A person (A) discriminates against a disabled person (B) if—

(a) A treats B unfavourably because of something arising in consequence of B’s

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim.

This is termed discrimination arising from disability (dafd) and is an important provision for union representatives and workers to be aware of. The claim can be broken down into five constituent questions:

  1. Is the worker disabled?
  2. Does the employer know, or should they know, the employee is disabled?
  3. Did the employer treat the employee unfavourably because of “something” (for example, sickness absences, being late for work, falling asleep)?
  4. Was that “something” caused or significantly connected to the employee’s disability?
  5. Is the unfavourable treatment in pursuit of a legitimate goal and are the means of achieving this in this case proportionate?

It is a rare case where there is an issue related to an employee’s disability that will not engage this issue in some way. What I want to focus on here is the relationship between reasonable adjustments and discrimination arising from disability.

In the 2015 Court of Appeal – and PCS backed – case of Griffiiths v DWP the court offered some good explanation on the difference between the duty to make reasonable adjustments and discrimination arising from disability: “[the] section 20 duty [ that is, the duty to make adjustments] is normally relevant when looking into the future; it is designed to help prevent treatment which might give rise to a section 15 claim from arising.” I think this distinction between forward looking and backward looking complaints is a good way of putting it – a good example is the type of situation that gave rise to the case in Griffiths.

Suppose an employer has a policy that if an employee is absent for 6 days in a year they will be subject to a formal disciplinary warning and a employee has been absent for 8 days in that period, but with three of those day’s being disability related and there is evidence that the employee’s disability is likely to cause additional absences going forward. It would be open to the employee to argue, before any disciplinary issues are even raised to say that there has been a failure to make adjustments to the 6 day trigger point. As the Court of Appeal suggested the duty to make adjustments is “looking into the future” to prevent issues arising. However, if a warning is issued the best claim is likely to be one of discrimination arising from disability on the basis that a warning has been given and this is unfavourable treatment but because there was a previous failure to make adjustments before issuing the warning this was disproportionate. The Equality and Human Rights Commissions statutory guidance puts the relationship with reasonable adjustments this way:

If an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified (5.21)

Although the EHRC Code is not referred to the same point is made by the court in Griffiths:

An employer who dismisses a disabled employee without making a reasonable adjustment which would have enabled the employee to remain in employment – say allowing him to work part-time – will necessarily have infringed the duty to make adjustments, but in addition the act of dismissal will surely constitute an act of discrimination arising out of disability. The dismissal will be for a reason related to disability and if a potentially reasonable adjustment which might have allowed the employee to remain in employment has not been made, the dismissal will not be justified.

The recent decision of the Employment Appeal Tribunal earlier this month in South Warwickshire NHS Foundation Trust v Lee and Ors introduces a further dimension. The case is a complex one but what matters for our purposes is the finding that a NHS Trust rescinded a job offer it had made upon receiving a negative employment reference that arose in part from disability related reasons. The reason why the Trust was found to have discriminated against the applicant for something arising from disability is because it conducted no investigations such as Occupational Health advice or even talking to the applicant about the issue to assess whether reasonable adjustments could address the matter. And so, even though there had been no prior obligation to make adjustments a failure to consider them before making treating an worker unfavourably (in this case withdrawing a job offer) was also discrimination arising from disability for reasons related to reasonable adjustments.

One other advantage of discrimination arising from disability claims is that the time limits for initiating an employment tribunal claim or pursuing grievances can be extended. The deadline for Employment Tribunal claims is still three months from the thing being complained about but in the context of adjustment cases the period will run from the day the decision not to make the adjustment is made but in discrimination arising from disability claims the relevant date is the date of the unfavourable treatment which may be weeks or even months later.