Category: Disability

‘Correctable’ Disability

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The definition of disability in the Equality Act 2010 has been covered a number of times in this blog, and comprises of four core requirements:

  • That the individual has a impairment; and
  • That this impairment affect their normal day to day activities; and
  • That this effect is substantial (which means more than trivial); and
  • That this has or is likely to be a long-term condition.

Sometimes a condition will be a disability even if all these requirements are not met, cancer is one example. However, conversely, some conditions even if they were to meet all four of the above requirements. These are set out in  The Equality Act 2010 (Disability) Regulations 2010 and the conditions range from Hay Fever to a tendency to set fires. However, in Schedule 1 paragraph 5 Parliament effectively added another condition to the prohibited list. 

The general position is that where a disability is treated and the treatment ‘cures’ the effect of the impairment then that is still considered a disability. So, for example, if a person had a mobility problem relating to their foot but, specialist footwear completely solved the problem then that would not stop the impairment being a disability under the Equality Act 2010, since the test is how the individual would be affected without the benefit of the treatment.

However, Paragraph 5(3) of Schedule 1 of the Equality Act introduces one exception:

Sub-paragraph (1) [that is the paragraph saying the effect of treatment or other measures should not be considered] does not apply—

(a) in relation to the impairment of a person’s sight, to the extent that the impairment is, in the person’s case, correctable by spectacles or contact lenses or in such other ways as may be prescribed;

So, if a person’s sight is ‘corrected’ by spectacles or contact lenses then they cannot be disabled even if the four criteria set out at the beginning of this post are met.

In Mart v Assessment Services Inc [2019] the EAT considered the scope of this case. Given the preceding summary the outcome of the case will not be a surprise but the case also provides a good reminder of the importance of careful identification of relevant issues.

Mrs Mart had diplopia, commonly referred to as double vision. She also experienced other long term conditions that may or may not have been linked to the diplopia. The facts around the originating employment tribunal is unclear as the EAT do not provide much detail and I have been unable to locate the original tribunal’s decision. However, the original claim was a claim of indirect discrimination and the disability claimed was diplopia.

In treatment of the double vision the claimant was prescribed contact lenses that did indeed correct her double vision. However, according to the claimant they had a side affect of harming her peripheral vision and causing a facial disfigurement. When making the claim however the claim expressly excluded a claim relating to depression and facial disfigurement (which can be a disability under the 2010 Act).

On the fact the EAT made two conclusions – first because the issue related to side effects of the treatment insofar as they were consequential to the treatment but were separate impairments could not be included. While the claimant could have argued that there were separate disabilities operative in the case she expressly chose not to and should have sought an amendment to the claim to include them.

Second,  because the double vision was indeed corrected by the contact lenses and since this was the impairment alleged to constitute a disability then applying paragraph 5(3)(a) the claimant’s sight problems were corrected by the treatment and so could not be a disability (this paragraph, it will be remembered, only applies to visual impairments that can be corrected by spectacles or contact lenses not to other disabilities).

The decision then is not in any way surprising but I think it is a useful by way of a reminder of the importance of ensuring all alleged disabilities are cited, not just in employment tribunal claims but also to employers. It is not not inconceivable that a more carefully pleaded case could well have had a different result. In this regard, the earlier decision of the EAT in Ginn v Tesco Stores Ltd UKEAT/0197/05 is helpful in its decision that for disability purposes the conditions that may not in themselves be disabilities can, when viewed together, amount to a disability.

 

 

 

Pre-Cancer

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Just over a year ago the Employment Appeal Tribunal issued its decision in Lofty v Hamis t/a First Café  and in its wake there was a lot of online discussions about whether precancerous conditions come within the deemed disability provisions of the Equality Act 2010.

Normally, in order to be a disability for the purposes of the Act a worker must show that the physical or mental impairment substantially affects their normal day to day activities and that it has or is likely to last for 12 months or more. However, the Act recognises three conditions, Cancer, HIV and Multiple Sclerosis, that are automatically a disability regardless of whether at that time the other elements of the disability definition are met.

From a worker representative’s point of view this this will mean that so long as the diagnosis can be demonstrated then the employer will have no basis for disputing disability and so the task of moving to the question of whether discrimination occurred or reasonable adjustments are required is less problematic.

The case of Lofty concerned  whether a precancerous condition came amounted to a cancer. In 2014 the claimant became aware of a skin blemish on her cheek. This was diagnosed as lentigo maligna. The advice of her medical practitioners variously descried this as precancerous lesion or a non malignant in situ cancer. In other words, the examination identified that there were cancer cells resent but this was not at the time at risk of spreading although they may  develop into a lesion malignant melanoma (a skin cancer). The Employment Tribunal that heard the case determined that since her condition is precancerous it was not yet cancer and so not a deemed disability.

It was this decision that was challenged in the EAT. In overturning the employment tribunal’s decision the EAT note that paragraph 6 of schedule one of the Equality Act (which lists cancer as a deemed disability) does not distinguish between invasive and noninvasive cancer. The fact that the claimant had cancer cells present was sufficient to mean this was cancer, regardless of whether oncologists referred to these as precancerous because they were not invasive.

However, a reading of the judgement makes the suggestions of many law firms headlines that precancerous conditions are deemed disabilities is false, there are many precancerous conditions and it is not clear all will satisfy the standard set out in Lofty. Nonetheless, I think it can confidently be stated that if there are cancer cells present then that person will be disabled under the Equality Act.

What does this mean for workers and representatives?

There are I think a couple of points worth commenting on.

First, where there are cancer cells present then the person will (at the relevant time) be disabled and so any sickness or performance issues associated with this such as sickness leave flowing from surgery are likely to require reasonable adjustments (for example, treating post operative convalescence as disability leave).

Second, while not every precancerous condition is cancer this is a difficult area relying on specialist reports of biopsies and similar reports and it is probably helpful to argue the point, as many employers will reasonably take a cautious approach and consider disability likely.

 

Discrimination Arising from Disability and Unfavourable Treatment

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The Supreme Court has recently issued its judgement in Williams v The Trustees of Swansea University Pension and Assurance Scheme, a case that brings to a close a long running employment dispute on the scope of the protection against discrimination arising from disability in section 15 of the Equality Act 2010. Specifically, the case centred on the question of what amounts to unfavourable treatment. For employees the decision is not a helpful one but being a decision of the Supreme Court and there being no indication of any ECJ reference it is an important one for employee representatives to be aware of.

Section 15 of the Equality Act 2010 sets out that it is unlawful to treat a person unfavourably for something arising from disability if that reason is not a proportionate means of achieving a legitimate aim.

The case is a relatively simple one but to understand what this case means a review of the factual background will be helpful.  Mr Williams was employed from 2000 until July 20913 when he was retired on ill-health grounds. He was 38 years old when he retired. His pension scheme provided that in the case of ill-health retirement there would be no actuarial reduction in his benefit, this essentially meant that his pension would  be calculated on the basis of what it would have been had he continued working until pensionable age. Part of this calculation considered the employee’s final salary at the time of retirement.

Before Mr Williams retired in order to try to manage his attendance at work with his disability Mr Williams was a part time worker. This meant that when calculating his pension entitlement the pension provider used the part time salary as the final salary. The core of the case was that the claimant alleged that the reason his working hours were lower, and therefore why he had a lower final salary was because of disability. Therefore, the decision of the pension provider to issue a lower pension was, according to the claimant, unfavourable treatment.

The respondent, by contrast, alleged that there was no unfavourable treatment at all and the facts show that the award of a pension was a positive a decision advantageous to the claimant.

On the question of unfavourable treatment the Supreme Court endorsed the decision of both the Employment Appeal Tribunal and Court of Appeal that the award of a pension was not advantageous.

In his final paragraph Lord Carnworth observes that:

The only basis on which Mr Williams was entitled to any award at that time was by reason of his disabilities. As Mr Bryant says, had he been able to work full time, the consequence would have been, not an enhanced entitlement, but no immediate right to a pension at all. It is unnecessary to say whether or not the award of the pension of that amount and in those circumstances was “immensely favourable” (in Langstaff J’s words). It is enough that it was not in any sense “unfavourable”, nor (applying the approach of the Code) could it reasonably have been so regarded.

There is of course a logic to that but I am afraid I am not persuaded. The suggestion that there is an “artificial” relationship between the decision to award a pension for ill-health and the method by which the amount of the pension is calculated seems to me to be divorced from the reality of what happens in such cases.

There are two comments in particular that I think are appropriate. The submission of the respondent that the pension would not have occurred bit for the disability seems questionable. There is no reason that a person working full time would not be medically retired, perhaps because their ill-health causes significant absences or performance concerns.

This observation leads to a second and more important observation. Frequently an employee who would likely be eligible for ill-health retirement will not want to be retired, they want to be useful and, as a means of doing that, will explore reduced working hours as a means of maximising the chance of working as long as possible. Is it right that an employee taking a decision such as this should do so in the knowledge that this becomes a gamble, and that if the adjustment (reduced hours) does not succeed they will be effectively penalised for this in reduced pension awards. Allied to this a more worrying risk is that some employer will actively ‘encourage’ employees who are disabled to reduce their working hours (under the guise of this being a reasonable adjustment) in the knowledge that the most likely outcome will be a reduced longer term pension liability to their disabled employees and the employees being in a much worse position than they would have been but for the employer’s reasonable adjustment.

 

Cases referenced:

Williams v The Trustees of Swansea University Pension and Assurance Scheme [2018] UKSC 65.

Discrimination arising from disability and reasonable adjustments

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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.

The duty to make reasonable adjustments

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discriminationThe BBC have been reporting that a Belfast women has won a £2,000 disability discrimination after event organisers, Eventsec Ltd, failed to make reasonable adjustments. The case itself, as reported by the BBC (I have not seen the judgement, strikes me as a helpful case with which to explain the duty).

The duty to make adjustments is a very powerful, and in my view under-utilised, right of employees in the workplace. Whether conducting sickness absence, performance, disciplinary, objective setting or a whole host of other meetings and workplace processes the duty to make reasonable adjustments can be a powerful tool to ensure employees are treated fairly.

The facts of the reported case can be summarised quite simply. Kayla Hanna was attending a Red Hot Chilli Peppers concert; Kayla has Type 1 diabetes. This meant that her body did not produce insulin, sometimes there can be a sudden drop in blood sugar (called a hypo) that can be life threatening. For that reason Kayla carried a bottle of Lucozade so if she needed to she could replenish her blood sugars and stay safe.

When she attended the gig she had a bottle of Lucozade to cover this eventuality but was told that there was a policy prohibiting event-goers from taking in bottles. Kayla explained that she needed the bottle because of her diabetes and showed evidence of her diabetes by showing her diabetes tattoo and insulin pack. Eventsec Ltd maintained that the rule applied to everyone and refused to allow Kayla to take the Lucozade with her. Thankfully, it appears that Kayla did not have a hypo attack but nonetheless was anxious for the duration of the concert.

The court found that Eventsec Ltd’s refusal to adapt the ‘strict policy’ was a breach of their duty to make reasonable adjustments and the court awarded £2,000 in compensation. It is, as most reasonable adjustment cases are, quite a simple factual situation. In the rest of this post I want to break the situation down showing the key requirements for when an employer is required legally required to make a reasonable adjustment.

Is there a Disability?

For the requirement to make reasonable adjustment to be engaged an individual must be a disabled person. For Kayla Hanna this was her Type One Diabetes. It practice a disability is manifested as a known medical condition but there is no necessary requirement that a condition be a medical one, and sometimes a medical condition (like diabetes) will not be deemed to be a disability.

The focus on establishing whether a person is not on whether or not a person has a certain condition (except for certain conditions where a person is automatically a disability such as certified visual impairment or cancer) but what effect the condition has on the person’s ability to complete normal day to day activities. Normal day to day activities is a wide ranging concept. This can be seen in the EU case of Ring which defined a disability as “those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others.” This could mean sometimes a disabled person cannot do something but it is more commonly the case that they can but it takes more time than it would for a non disabled person. The impairment must be long term to qualify, and long term means something that has lasted or is could well last for 12 months or more.

The fact is that under the Equality Act 2010 a very many people will be likely to be the disabled. For example, in my experience there are not many people on long term sick absence who do not have at least a reasonable argument that they are disabled but the biggest obstacle is people own reluctance to use the label as it is a term with a stigma.  However, adjustments like those found not to have been applied in Kayla are in the main exceedingly straightforward and cost nothing to apply but can make a huge difference to working lives. Whilst for a union rep raising disability is often a defence against management actions that is a sign that something has gone wrong – early identification can instead often avoid those situations arising in the first place.

Does the employer know there is a disability?

One of the difference in reasonable adjustment law in an employment field rather than a provision of services case (such as in Kayla Hanna’s case) is that the for the duty to make adjustment’s to be engaged the employer must know that the employee is disabled – that knowledge can come from being informed by the employee or by ‘constructive knowledge; in most non-employment cases the duty is anticipatory meaning they do not need knowledge of an individual’s disability. However, in Kayla’s case she informed the security officer of the disability, and showed evidence of this and her insulin pack and this would be likely to satisfy the requirement in any case. It is good practice for an employee to inform the employer in writing of the condition, and, as importantly, how this makes certain activities impossible or more difficult.

Is there an arrangement that places a disabled person at a disadvantage because of their disability?

The central plank of the duty to make reasonable adjustments is that the employer has a “provision, criterion or practice” that places the disabled worker at a substantial disadvantage compared to a non-disabled worker. That, at least, is the language used in the Equality Act 2010. In less grandiose terms however the requirement can be summarised as a neutral arrangement or practice of an employer that has harsher consequences on a disabled person, or more specifically, a specific disabled person.

In the  Eventsec Ltd case the company had a policy that was applied equally to all concert-goers: no-one was able to bring in any fizzy drinks or bottles. Legally speaking provision, criterion or practice are distinct, something can be a provision and not be a practice but practically speaking in most cases nothing turns on this. This was a policy that was neutral (it was not aimed at diabetics). However, when applied across the board as it was to Kayla, this had a more severe effect on Kayla as a diabetic than it would have otherwise. For a non-diabetic this may have meant mere inconvenience, or perhaps having to fork out for an overpriced replacement inside the concert venue. However, for  Kayla she was placed at risk of a hypo with no immediate source of raising blood sugar.

The importance of reasonable adjustment law is that a provision, criterion or practice can be found in innumerable circumstances. Alternatively, if there is a physical feature that places an employee at a disadvantage this will also engage the duty to make a reasonable adjustment;. A simple example of this would be a job applicant who uses a wheelchair who is invited to a job interview on the first floor but there is no lift available and just a flight of stairs which the applicant cannot ascend.

Is there an adjustment that might work?

The fourth aspect is the question of whether there is an adjustment that the employer could make that removes or mitigates the disadvantage caused by the provision, criterion or practice. For Kayla Hanna the disadvantage caused by the policy against drinks being brought into the concert could have been addressed either by dis-applying the policy in the case of disability or, as the court also suggested, bottles of Lucozade could have been given to disabled ticket holders.

A reasonable adjustment need to be guaranteed to succeed, all that is required is that there is something that could work. This means that the oft cited reason by workplace managers that an adjustment cannot be made as there is no guarantee of success is false.

Also, unlike most other types of discrimination law the law on reasonable adjustments recognises that sometimes an employer is required positively discriminate and treat disabled person more favourably. This was famously set out by the House of Lords in the case of a very important case of Archibald: “The duty to make adjustments may require the employer to treat a disabled person more favourably to remove the disadvantage which is attributable to the disability. This necessarily entails a measure of positive discrimination.”

So, to give a common example, if an employer has a policy on convening disciplinary hearings after a certain number of sickness absences and an employee is more likely to be absent for disability related reasons then it will often be a reasonable adjustment to all an employee more days sickness absence before they start disciplinary proceedings than they would otherwise.

Is the adjustment reasonable? 

The last requirement is whether in all the circumstances of the case the adjustment is reasonable – this is a high hurdle to reach. Factors that are considered are cost, health and safety of staff, impact on operational effectiveness. However, it will be very rare where a person is at a substantial disadvantage for not adjustments to be possible. As was stated by the Employment Appeal Tribunal in Dyer v London Ambulance NHS Trust (2014) “It will be rare, though plainly possible, for there to be circumstances in which no reasonable adjustment can be made. Tribunals should think long and hard before concluding this.”

 

Can a temporary ailment be a Disability?

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My broken wrist in a blue fiberglass castMary is a typist, a role she has done for many years. After over ten years with a company she took the plunge and joined a new employer four months ago because they offered a higher salary.

However, a few weeks after starting her role she had an unfortunate accident at home and she broke her hand after a construction materials fell onto it. She needs both a cast and physiotherapy to recover, but a full recovery is expected in 7 to 9 months. Until then while she is not able type she may be able to do some work .

Not unsurprisingly Mary’s new employers are sympathetic but since her role is as a typist are concerned they cannot accommodate her absence from work for up to nine months and are considering dismissing her from employment. Aware that apart from any discrimination or procedural errors a dismissal would be very unlikely to be unfair – let alone that as she has not been employed for the two years necessary to make a claim – Mary wants to argue that her hand injury is a disability as that will give her more grounds upon which to challenge her threatened dismissal.

Disability

Disability is a protected characteristic under the Equality Act 2010 and so, if Mary’s hand injury were  disability, Mary would have a right of redress against a dismissal (although that is not to say she would win a claim).

The UK Law is itself based on EU Law, specifically Council Directive 2000/78/EC . Although not defined the European Court of Justice (ECJ) in the case of Chacón Navas  explained that disability amounts to

“a long-term limitation which results in particular from physical, mental or psychological impairments and hinders the participation of the person concerned in professional life.”

Clearly, an inability to type is a normal day to day activity but is also central to Mary’s professional so if this is a ‘long term limitation’ Mary can be disabled. So what does long term mean? Schedule 1 Part 1 of the Equality Act 2010 defines a long term impairment as one that is “likely to last for at least 12 months.”

The UK Government’s Equality Act Guidance on the meaning of disability explains ‘likely’ “should be interpreted as meaning that it could well happen.” So, Mary’s prospects of suggesting that she is disabled in the acct will depend on whether an employment tribunal found that her hand condition ‘could well’ be an impairment that lasted for twelve months or more. Given that the evidence is that it will last for just 7-9 months it does not look like Mary’s prospects of establishing she is disabled are very good.

However, as a union representative I would, faced with this situation make sure that the employer is forced to make a decision that the individual is not disabled by setting out the view that a condition could well continue to effect the employee for more than twelve months and that the employee is disabled with the corresponding obligations that that places on an employer. This is because good employers will as a matter of best practice give the benefit of the doubt to an employee if there is uncertainty and, even if the employer does refuse to accept this then this can be used as a basis of future challenge.

Temporary Incapacity can be a disability

However, it seems to me that the 12 month period of impairment may well be suspect. In Daouidi v Bootes Plus SL, which was a preliminary reference from the Spanish national courts, the CJEU considered whether in a situation similar to Mary’s a person could be disabled because of a temporary incapacity and decided that she might be.

The claimant, Mr Daouidi, had recently started working for a restaurant (Bootes Plus SL) when he had an slipped at work and dislocated his elbow, this accident prevented him from working. Mr Daouidi was absent from work. Approximately 7 weeks after the accident Mr Daouidi was still absent from work and because there was no clear information about when he would recover Mr Daoudi was dismissed from his employment and he challenged the dismissal in Spanish courts, with one of his grounds being that he was disabled even though he was expected to recover within an indeterminate timescale.

Some six months later when appearing before the Spanish judges Mr Daouidi still had his arm in a sling and the judges wondered whether this could amount to  long term condition. As the EU court often does in preliminary ruling the court did not decide the case so we do not know whether Mr Daouidi was found to be a disabled person.

However, two things are of note in the judgement. First, the fact that a condition is temporary or in the nature of an accident (such as a dislocated shoulder) does not itself mean the condition cannot be a disability.

Second, it remains the case that the term “long term” remains undefined but the court did not demur that an injury that lasts 6 months and interferes with professional life could not constitute a long term condition (even though they did not state it was). The court also observed that

According to settled case-law, the need for a uniform application of EU law and the principle of equality require that the terms of a provision of EU law which makes no express reference to the law of the Member States for the purpose of determining its meaning and scope must normally be given an autonomous and uniform interpretation throughout the European Union … In the absence of such an express reference to the law of the Member States, the concept of a ‘long-term’ limitation of a person’s capacity, within the meaning of the concept of ‘disability’ referred to by Directive 2000/78, must therefore be given an autonomous and uniform interpretation.

In short, “long term” should normally be given a uniform interpretation so that, for example, long term should mean the same in the UK (while the UK remains subject to the EU that is) as in Ireland, Spain, France etc. Interestingly, it appears that after the CJEU the Spanish Courts did in fact find that Mr Daouidi was disabled because of a long term injury even though on the test in the Equality Act 2010 he would have been unlikely to have met the definition of long term this set out.

The UK legislation that defines “long term” as likely to last 12 months or more has the advantage of certainty but it seems to me it is not an inviolable requirement and a person such as Mary may be a disabled person under Directive 2000/78 even though they may not under national law that was enacted to implement the directive.

So, would Mary be disabled? Possibly.

 

 

Can a Taxi to work be a Reasonable Adjustment?

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This is a question that is only ever likely to be asked of employees of central government departments. In most circumstances a disabled employee who is unable to travel to work by their own means (for example, by driving or using public transport) may obtain assistance through the Access to Work scheme which provides fares to work assistance. It is only employees of central government departments who are, as a matter of policy, excluded from that assistance and therefore, any assistance would need to come from the employer.

Unfortunately, the legal question of whether an employee should be given assistance to travel to and from work is less helpful. In Kenny v Hampshire Constabulary, a case concerning the Disability Discrimination Act 1995, the extent of which activities related to employment are “arrangements made by or on behalf of the employer” that engage a duty to make reasonable adjustments (in 2004 the DDA was amended to make reference instead to a provision, criterion or practice applied by or on behalf of the employer”.

Kenny is a sad case in which the claimant, who had cerebral palsy exhibited notable tenacity in refusing to accept Access to Work recommendations that he was unable to work and sought employment himself. He was successful in his application but when the full nature of the adjustments required were known, such as needing assistance to go to the toilet, the employer withdrew the job offer. The question for the EAT was were the domestic needs of Mr Kenny an arrangement made by or on behalf of the employer. The EAT dispatched with this issue quickly in finding that the arrangement must be ‘job related’:

The first question that arises is whether the arrangements which were necessary to enable the applicant to work with the respondents fall within section 6. We have come to the conclusion that they do not. Broadly, we accept the submission on behalf of the respondents on the cross appeal. In the first place, we consider that Ms Moor’s submission amounts to a contention that every arrangement which could be made to facilitate the disabled person’s employment falls within the definition in section 6(2). Yet, as it seems to us, a line must be drawn somewhere otherwise the statute would have been drafted differently. Subsection (2), as the word “only” foreshadows, is not intended to cover everything an employer could do. For example, the provision of transport for getting to an fro from the employers’ premises is outwith the section. If a disabled person needs assistance from another to get to work, that is for him/her to provide and pay for, but not the employers’ responsibility. The effect of a failure to provide this service may deprive the disabled person of an opportunity to be employed in an undertaking, but without involving a breach of the Act. Therefore, the fact that the failure to make an arrangement will have this effect does not, of itself, bring the arrangement within the Act. In other words, not every failure to make an arrangement which deprives an employee of a chance to be employed is unlawful. It is to section 6(2) that one must turn for a definition of what is covered. It seems to us that in the context of the language used, namely “any term condition or other arrangement on which employment promotion a transfer or any other benefit is offered or afforded”, Parliament had in mind what might be called ‘job related’ matters. In other words, Parliament is directing employers to make adjustments to the way the job is structured and organised so as to accommodate those who cannot fit into existing arrangements.

It seems clear then that under the DDA at least a refusal to provide transport to and from work will not be a ‘job related’ arrangement and therefore not be a reasonable adjustment. Only where the employer does more generally provide transport to work, which does sometimes happen, would this be a arrangement of the employer that would possibly engage the duty to make adjustments for a more individual approach to work.

In conversation with other reps one question that reps have asked is how on this basis the allocation of a reserved car parking space can be found to be a reasonable adjustment since this is also clearly not about the job itself but traveling to and from work. The case of The Environment Agency v Donnelly is a case in point. In Donnelly the employer offered car parking to all staff in two different car parks. It is therefore an arrangement made by the employer such that where that arrangement placed a disabled person at a substantial disadvantage there was a duty to make reasonable adjustments imposed. Were an employer not to offer any car parking spaces for use by employees then there would not be a arrangement of the employer that could place disabled employees at a substantial disadvantage.

But what of the situation under the Equality Act 2010?

Section 20 of the Equality Act supersedes Section 6 of the DDA to set out the circumstances in which a duty to make adjustments arises. The main focus on when a duty to make adjustments arises in the Equality Act remains essentially the same as was the case under the DDA: the employer must impose “a requirement, where a provision, criterion or practice of A’s puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled”.

I can see no basis under the current legislative drafting why the principle in Kenny that an adjustment must be job-related and a PCP of the employer would not be applied in an Equality Act context. I have heard it said that the addition of section 20(5) of the Equality Act which relates to auxiliary aids may change the position. An Auxiliary Aid is defined in the EHRC Employment Practices Code (6.13) as being “something which provides support or assistance to a disabled person. It can include provision of a specialist piece of equipment such as an adapted keyboard or text to speech software. Auxiliary aids include auxiliary services; for example, provision of a sign language interpreter or a support worker for a disabled worker.”

Whilst I am not aware this issue has been adjudicated upon (if I’m wrong comments are very welcome) given the definition of “relevant matter” in schedule 8 of the Act I cannot see that a tribunal would be likely to take a different approach and the EHRC Code does not advance this (the language of the Code itself reflects the earlier Code alluded to in Kenny).

Does that mean there is no legal recourse to an employee? Were an employee to in principle qualify for Access to Work’s fares to work scheme but in practice not qualify because of their employment in a central government department then it does strike there is a prospect that they may have a claim that the employer’s failure to pay for their transport represents unfavourable treatment arising from disability. Because of the Government’s public commitment when removing DWP funding for Access to Work adjustments that there would be no loss in the level of support offered then it could be argued that the actual deterioration in support offered is not a proportionate means of achieving a legitimate aim.

 

Cases Cited:

Kenny v Hampshire Constabulary [1998] UKEAT 267_98_1410

The Environment Agency v Donnelly [2013] UKEAT 0194_13_1810