‘Correctable’ Disability

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.

 

 

 

Veganism and discrimination

Last year the BBC ran a story on what it described as a ‘landmark’ case on whether veganism, or more specifically, ethical veganism was a religion or belief for the purposes of the Equality Act 2010.

The factual background to the case is that the Mr Casamitjana was dismissed by his employer, the League Against Cruel Sports, for what the employer deemed to be gross misconduct. Mr Casamitjana however has (I assume) alleged that the dismissal was discriminatory, the exact label upon which the discrimination is alleged to occur is unclear but I would imagine it is a complaint of direct discrimination given the employer’s statement to the press that “Mr Casamitjana is seeking to use his veganism as the reason for his dismissal.”

Landmark?

Whilst the BBC (and Mr Casamitjana for that matter) seem to promote the case as landmark I really do not see it as such.  The protected characteristic of religion of belief in the Equality Act is broad and includes philosophical beliefs of which ethical veganism is potentially surely one whether there has been a case considering this or not.  The test for whether a philosophical belief is covered by the protected characteristic of religion or belief is set out in the EAT’s decision in Grainger PLC v Nicholson [2009]. Grainger, which itself concerned the alleged protected belief of climate change and the environment, sets out that five questions need to be answered affirmatively, and if they are then the belief is protected:

(i) The belief must be genuinely held.
(ii) It must be a belief and not an opinion or viewpoint based on the present state of information available.
(iii) It must be a belief as to a weighty and substantial aspect of human life and behaviour.
(iv) It must attain a certain level of cogency, seriousness, cohesion and importance.
(v) It must be worthy of respect in a democratic society, be not incompatible with human dignity and not conflict with the fundamental rights of others

What is noteworthy is that it appears likely that the EAT’s decision takes the scope of religion and belief discrimination much further than the then New Labour government that introduced it intended – for example, in 2010 after the EHRC issued guidance that veganism was probably a protected belief the Government Equality Office objected to this expansion saying

the government did not share the view that climate change or veganism were religious beliefs; however, the interpretation was a matter for courts. The spokesman said: “The Equality Bill does not change the existing definition of religion or belief and the Government does not think that views or opinions based on scientific – or indeed on political – theories can be considered to be akin to religious beliefs or philosophical beliefs. Nor was it the intention in introducing the legislation that such beliefs should be covered (source).

Be that as it may the broader approach has indeed been accepted by the courts and it is not hard to see that ethical veganism is quite capable of meeting these five Grainger tests. Indeed, the EHRC in its Religion and belief guidance is explicit that “Beliefs such as humanism, pacifism, vegetarianism and the belief in man-made climate change are all protected.” There is no sensible reason why vegetarianism should be a protected belief and veganism is not.

Again, quoting from the BBC’s piece, Peter Daly the solicitor for Mr Casamitjana explains that if his client is “successful, we will achieve a judgment which formally recognises the protected status of ethical veganism and which could then be used as the basis to combat discrimination against vegans in employment, in the provision of goods and services, and in education. This is therefore a landmark case.”

Frankly, whether a tribunal has ever formally recognised ethical veganism as a protected belief or not it is little more than PR to describe this as ‘landmark’ the fact that according to Mr Casamitjana’s own crowdfunding appeal this apparently ‘contentious’ issue has now been conceded by the employer.

What seems more likely is that the real battle will be not on whether the treatment was because of the protected belief itself or because of conduct that arguably grew out of that belief similar to the recent Court of Appeal judgement in Kuteh upholding the fairness of the dismissal of a Christian nurse for inappropriate proselytism during work hours.

Protected Belief

To continue with the vegan theme I note that the Daily Mirror is reporting today on demands to outlaw vegan discrimination, with Alex Monaco a solicitor being quoted as saying:

If you were Jewish or Muslim and told to get a round of bacon sandwiches in, no one would bat an eyelid if you refused. But if you’re vegan and refused to buy a pint of milk to make tea because you believe the dairy industry is torturing cows, then you would be laughed out of the kitchen. Employers should have a duty to ensure vegans are protected at work and are offered options. The ultimate aim is to get the law changed so that the Equality Act includes vegans.”

I have to confess it does strike me as a strange demand since, as should be clear, there is no reason that claims of discrimination at work on the basis of veganism cannot already, on the current law, be pursued meaning there is no need to “get the law changed” at all. The mission is already accomplished!

Pimlico Plumbers Visit the Supreme Court

supreme courtIt is only less than two months since Don Lane, a worker for courier firm DPD, died after DPD fined him £150 for having the audacity of attending a necessary hospital appointment.  As a ‘self-employed’ worker workers like Lane have very few effectively no employment rights. For example, fining a worker for attending a disability related medical consultation is potentially disability discrimination but could such a person make such a claim?

A firm such as DPD would probably, as Pimlico Plumbers did in the case that started in the Supreme Court today, say no and the basis of the of that denial is section 83(2)(a) of the Equality Act 2010 which states that a person may make a claim for discrimination if they are in “employment under a contract of employment … or a contract personally to do work”. Since many alleged self-employed workers do have a right of substitution – the ability to ask someone else to do the work (a substitute) – they do not have a contract to personally to do work and therefore they are unable to bring a claim for discrimination. The facts underlying the Pimlico case are worth repeating and bare more than a passing  resemblance to the tragedy that faced Don Lane.

Mr Smith had worked for Pimlico for a few years as a plumber but had a heart attack. He wanted to reduce his hours of work but after making a request to do so which was refused Mr Smith was dismissed. He made a claim for unfair dismissal (which was struck out as he was not an employee), unpaid holiday pay as a worker (under EU law) and discrimination. The ET, EAT and Court of Appeal all found in favour of Mr Smith on the worker and s.83 points but it is this the Mr Charlie Mullin is challenging.

Whilst the judgement on worker status will be important it is the decision of standing to bring claims under the Equality Act that is most important and potentially far reaching.

The law on employment status in the UK is a farce with Parliament mandating that those with the most tenuous status having the least statutory rights to protect them from unscrupulous and domineering ’employers’ whilst employees  who tend to me more secure in employment having the most.

Mr Mullins is doing the media rounds on how the case is different from Uber and his position is common sense but the bottom line is his argument is that workers like Mr Smith who have a claim they have been discriminated against and have had their livelihood’s destroyed should  have no right to claim discrimination at all. That is not common sense, that is naked exploitation.

It is Parliament that have allowed this joke of employment rights (non)protection where the most vulnerable workers are given the lowest level of protection and right of redress to remain in place for so many years and, for all the noises, I do not see that the Taylor Reforms will make any real difference.

I hope that the Supreme Court has the sense to ensure that the attempt of Mullins, who will have every rogue employer in the country rooting for him, to remove most gig economy and self employed workers from the protection of UK anti-discrimination law fails.

Is Diabetes Necessarily a Disability?

diabetesIf a person has type 2 Diabetes are they necessarily disabled under the Equality Act 2010?

This was the question considered by the Employment Appeals Tribunal in Metroline Travel Ltd v Stoute [2015] UKEAT 0302_14_2601. The claimant had type 2 diabetes but was not on medication for this but did control his condition by controlling his diet, this basically comprised of the claimant avoiding fizzy drinks. The first tier tribunal made reference to the statutory guidance on the definition of disability which it was obligated to have due regard to. In particular, the Tribunal considered paragraph B12 of that guidance (emphasis added):

The Act provides that, where an impairment is subject to treatment or correction, the impairment is to be treated as having a substantial adverse effect if, but for the treatment or correction, the impairment is likely to have that effect. In this context, ‘likely’ should be interpreted as meaning ‘could well happen’. The practical effect of this provision is that the impairment should be treated as having the effect that it would have without the measures in question (Sch1, Para 5(1)). The Act states that the treatment or correction measures which are to be disregarded for these purposes include, in particular, medical treatment and the use of a prosthesis or other aid (Sch1, Para 5(2)). In this context, medical treatments would include treatments such as counselling, the need to follow a particular diet, and therapies, in addition to treatments with drugs.

On the basis of that guidance the Tribunal determined at a preliminary hearing that the claimant’s avoidance of sugary drinks was “a particular diet” and, therefore, that the claimant was disabled for the purposes of the Equality Act 2010. However, the claimant was to lose the substantive hearing, and no appeal against that finding was made.   In the appeal judgement (which concerned only the statutory definition of disability) the judge disagreed; at paragraph 11 it was found that “abstaining from sugary drinks is sufficient to amount to a particular diet which therefore does not amount to treatment or correction.”

In coming to that view reference was also made to B7 of the statutory guidance, which states that a person may not be at impaired from carrying out normal day to day activities if they can reasonably amend their behaviour to avoid the impairment:

Account should be taken of how far a person can reasonably be expected to modify his or her behaviour, for example by use of a coping or avoidance strategy, to prevent or reduce the effects of an impairment on normal day-to-day activities. In some instances, a coping or avoidance strategy might alter the effects of the impairment to the extent that they are no longer substantial and the person would no longer meet the definition of disability. In other instances, even with the coping or avoidance strategy, there is still an adverse effect on the carrying out of normal day-to-day activities.

For example, a person who needs to avoid certain substances because of allergies may find the day-to-day activity of eating substantially affected. Account should be taken of the degree to which a person can reasonably be expected to behave in such a way that the impairment ceases to have a substantial adverse effect on his or her ability to carry out normal day-to-day activities.

In applying this paragraph the EAT also found (in addition to the finding that avoidance was not a particular diet that avoiding drinks such as Coca-Cola and Fruit Juices was a reasonable modification and that the normal day to day activity of eating and drinking did not have a substantial affect was not substantially affected (although how this was done without any regard to the personal circumstances of the (debarred) claimant I do not know. If you were a teetotal and unable to drink either a Coke or a Orange Juice because of Diabetes that does not leave much choice of liquid refreshment on an evening out! The effect of the avoidance may therefore be substantial, but this was ignored in the judgement.

Unfortunately, in Metroline there no opportunity for the Respondent (the claimant in the case) to put forward legal arguments and neither were there any representations (by the EHRC for example) made and so we are left with quite an unhelpful judgement. It seems a perverse decision to say avoidance of a particular very commonly consumed foodgroup is not “a particular diet” as the EAT said here; that would still leave the question of whether normal day to day activities were affected because avoidance was a reasonable modification which would be particular to the case in hand (but in the event was not considered).

Still, the judgement does throw into light the difficult question of what is reasonable modification; it is one I think there is very little guidance on for reps. It is also one prone for abuse by employers.  When making disability related complaints, particularly with conditions like diabetes, social anxiety, and stammering it would be worthwhile to spend a few moments considering whether there are modifications employers are likely to argue would be reasonable.