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Heather Williams QC

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Title: What is Disability Discrimination? A consideration of recent case law.

DISABILITY

1. Subject to the provisions of Schedule 1, a person has a disability for the purposes of the Disability Discrimination Act 1995 (“DDA”) if s/he has a physical or mental impairment which has a substantial and long-term adverse effect on his / her ability to carry out normal day-to-day activities: see section 1.

Adverse Effect on Ability to carry out Normal Day-to-Day Activities

2. An impairment is to be taken to effect the ability of the person concerned to carry out “normal day-to-day activities” only if it affects one of the functions listed in paragraph 4(1) of Schedule 1 DDA. However what amounts to a “normal day-to-day activity” is not itself defined.

3. In Patterson v The Commissioner of Police of the Metropolis [2007] IRLR 763 the Employment Appeal Tribunal (“EAT”) held that the Employment Tribunal (“ET”) had misdirected itself in law in concluding that a dyslexic chief inspector of police was not disabled. His DDA claim alleged that the Respondent had failed to make a reasonable adjustment for him in relation to an examination he wished to undertake for promotion to the rank of superintendent, in circumstances where expert evidence indicated that because of his disability it would take him 25% additional time to complete the paper. However, the ET held that taking a high-pressure assessment or examination was not a normal day-to-day activity within the meaning of the DDA. The EAT disagreed. Citing with approval from Ekpe v Commissioner of Police of the Metropolis [2001] ICR 1084, the EAT stressed that what is normal cannot sensibly depend upon whether the majority of people do it. Rather “normal” is best understood as the opposite of something that is unusual or abnormal. Any other approach to the construction of the DDA would effectively impose a glass ceiling on the progression of the Claimant’s career: see paragraphs 66 & 70¹.

4. The EAT concluded that this was the correct approach even without reference to EU law. However, the correctness of the approach was confirmed by reference to the decision of the ECJ in Chaćon Navas v Eurest Colectividades SA [2006] IRLR 2006. In that case the ECJ explained the concept of disability in the Framework Directive in the following terms:

“The concept of disability must be understood as referring to a limitation which results in particular from physical, mental or psychological impairments and which hinders the participation of the person concerned in professional life.” and

“The importance which the Community legislature attaches to measures for adapting the workplace to the disability demonstrates that it envisaged situations in which participation in professional life is hindered over a long period of time.”

The EAT held that section 1 DDA could be read in a way that gave effect to EU law by interpreting “normal day-to-day activities” as including “the activities which are relevant to participation in professional life”: see paragraph 67. Thus if, as in the present case, the Claimant’s impairment affected his / her promotion prospects it must be said to hinder his participation in professional life. This decision indicates a different emphasis to that suggested in paragraphs D4 – D9 of the Guidance on matters to be taken into account in determining questions relating to the definition of disability (2006) (“the Guidance”), where it is said that in general day-to-day activities are things that people do on a regular basis and they do no include work of any particular form.

Adverse Effect must be “Substantial”

5. In Patterson the ET also concluded that the claimant was not disabled on the basis that any adverse effect he experienced in terms of his difficulties with the promotion examination were not substantial when looked at in comparison with “the ordinary average norm of the population as a whole” and emphasis was placed on his successful police career, including advancement to the rank of chief inspector. The EAT held that this was the wrong approach. In considering whether the adverse effect identified is “substantial”, the ET must compare the Claimant not with the population at large, rather the focus should be on “the difference between the way in which the individual in fact carries out the activity in question and how he would carry it out if not impaired”: see paragraphs 26,27, 38, 39 & 68 in particular.

Substantial Adverse Effect must be “Long-term”

6. A long-term effect is one that has lasted for 12 months or “the period for which it lasts is likely to be at least 12 months” or it is likely to last for the rest of the life of the person affected: see paragraph 2(1), Schedule 1 DDA. Further, where an impairment ceases to have a substantial adverse effect on a person’s ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect “if that effect is likely to recur”: paragraph 2(2) Schedule 1.

7. It is well established that the question of whether a claimant is disabled within the meaning of the DDA is usually to be assessed at the time when the alleged discrimination occurred² (“the relevant date”). However, a question has arisen over whether the ET can take into account events occurring between “the relevant date” and the date of the hearing in order to assess whether the substantial adverse effect relied upon by the claimant is long-term. There is a conflict of authority on this point. Prior to this year, in Greenwood v British Airways plc [1999] IRLR 600 the EAT held that the ET had erred in not applying what was then paragraph B.8 of the Guidance so as to take into account events occurring after the allegedly discriminatory behaviour in assessing the likelihood of the effect relied upon lasting for the requisite period. Reliance was placed by the EAT on the House of Lords’ decision in Bwllfa & Merthyr v Pontypridd Watermans Co. [1903] AC 426 HL (“the Bwllfa principle”). However, in Latchman v Reed Business Info. EAT/1303/00 the EAT (Lindsay J) considered that Greenwood was wrong on this point; that the ET should assess the “long-term” issue without regard to events occurring after the relevant date; and that the Guidance was also wrong on this point. Particular emphasis was placed on the use of the word “likely” in paragraph 2, Schedule 1 DDA; this was said to indicate that the assessment of the period for which the Claimant would suffer the effect in question should occur at the point of the alleged discrimination; the key is what was expected at that point, not what actually occurred subsequently.

8. In Spence v Intype Libra Ltd UKEAT/0617/06 (judgment handed down on 27 April 2007) the EAT (Elias J, President) preferred the approach in Latchman to that in Greenwood, albeit resolution of the issue was not necessary in order to decide the appeal in that case. The EAT noted that the ET was obliged to take into account the Guidance³ but was not obliged to follow it where it was inconsistent with the terms of the statute. The Court also noted that the Guidance had been amended after Greenwood to remove the offending part of paragraph B8 (now paragraph C3). The EAT also observed that as a matter of logic subsequent events could not be material. For example, if an employer dismissed someone who has a disability likely to last 12 months, the legal position could not be altered if the employee made an unexpected recovery shortly thereafter. Conversely, if an employee was not disabled when the allegedly discriminatory act occurred, the Claimant could not be found to be disabled because his / her condition took an unforeseen turn for the worse thereafter. For these conclusions see paragraphs 25 – 28 in particular.

9. However, in McDougall v Richmond Adult Community College UKEAT/0589/06 the EAT (HHJ McMullen QC; judgment handed down 13 July 2007) held that the approach in Greenwood was to be preferred, so that when considering the period that the effect in question was likely to last the ET should have regard to material developments between the date of the alleged discrimination and the date of the hearing. Spence is not referred to in the judgments and thus (presumably) was not cited to the EAT in this case. The EAT’s central reasons for preferring Greenwood to Latchman can be summarised as follows:

   1. The issue was only addressed by way of an obiter dictum in Latchman;

   2. In Golden Strait Corporation v Nipong Yusen [2007] UKHL 12 a majority of the House of Lords had affirmed the application of the Bwllfa principle as applying in circumstances beyond commercial contracts⁴;

   3. There was no particular significance in the use of the word “likely” in the DDA;

   4. It was unattractive for the ET to speculate and to ignore reality.

10. However, Golden Strait (and Curwen) applied the Bwllfa principle in relation to the assessment of damages once liability was not in issue and did so in order to avoid offending the well established compensatory principle that a claimant should not recover compensation exceeding that which s/he has actually lost as a result of the defendant’s wrong. Further, as Spence, was not considered by the Court, the reasoning set out in that judgment (and summarised above) was not addressed.

UNLAWFUL DISCRIMINATION

The Duty to make Reasonable Adjustments

11. Failure to comply with a duty to make reasonable adjustments imposed on the employer in respect of a disabled claimant is one form of unlawful discrimination under the DDA. The circumstances in which the duty arises are set out in section 4A. Section 18B then sets out particular factors that the ET should take into account in considering whether it is reasonable for a particular step to be taken in order to comply with a duty to make reasonable adjustments.

12. In The Environment Agency v Rowan UKEAT/0060/07 (judgment handed down 1 November 2007) the EAT re-stated that an ET could not properly make a finding that an employer had failed to make reasonable adjustments without first addressing what, if any, duty to make adjustments arose pursuant to section 4A. Accordingly, the ET should first identify:

i. The provision, criteria or practice applied by or on behalf of the employer; or

ii. The physical feature of premises occupied by the employer; and

iii. The identify of the non-disabled comparators (where appropriate); and

iv. The nature and extent of the substantial disadvantage suffered by the Claimant⁵.

Unless the ET has identified (for example) the relevant provision, criteria or practice which puts the disabled Claimant at a substantial disadvantage then it is impossible to apply section 18B(1)(a) correctly, as this requires the ET to consider “the extent to which taking the step would prevent the effect in relation to which the duty is imposed”⁶.

The Burden of Proof in a Reasonable Adjustments Case

13. In Project Management Institute v Latif [2007] IRLR 576 the EAT (Elias J, President) considered how the statutory burden of proof provisions were to be applied in reasonable adjustment cases. The EAT “very much doubted” that the burden shifted at all in respect of establishing the criteria prescribed by section 4A DDA to show that a duty to make reasonable adjustments arose. It was said that these matters were simply questions of fact for the Tribunal to decide after hearing all the evidence, with the onus of proof resting on the claimant throughout. It was also pointed out that these were not issues where the employer had information or beliefs within his own knowledge that the claimant could not be expected to prove. It was said that to talk of the burden of proof shifting in this context was “confusing and inaccurate”: see paragraph 45.

14. However, if and when a claimant showed that the duty to make reasonable adjustments had arisen and a potentially reasonable adjustment had been identified, then the burden shifted to the employer to show whether an apparently reasonable adjustment was in fact reasonable given his own particular circumstances: see paragraph 53. Employers could not be expected to prove a negative, i.e. that there was no conceivable adjustment that reasonably could have been made. Accordingly, it was usually incumbent on a claimant at the hearing to identify some apparently reasonable adjustment that could be made. It was not necessary in every case for the claimant to put forward the detailed adjustment that should be made, but the respondent should be given sufficient information to enable him to understand the broad nature of the adjustment proposed and to engage with the question of whether it could reasonably be achieved or not: see paragraphs 53 – 57. It was accepted that it was not fatal for the claimant to identify the adjustment during the proceedings and thus after the time of the alleged failure to implement it⁷. It was also accepted that in certain circumstances, particularly if the claimant was not represented, it could be appropriate for the ET of its own motion to raise a possible adjustment at the hearing, provided that the employer had a proper opportunity to deal with the point.

Whether an Adjustment is Reasonable is an Objective Test

15. In Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 the EAT held that the earlier decision in Mid Staffordshire General Hospitals NHS Trust v Cambridge [2006] IRLR 566 was incorrect in finding that there was a failure to make a reasonable adjustment if the employer failed to carry out a proper assessment of the claimant’s situation so as to determine what was required to overcome the disadvantage that s/he was experiencing. In Tarbuck the EAT held that a failure to carry out such an assessment did not of itself constitute a failure to carry out a reasonable adjustment. If the employer makes an appropriate adjustment, it mattes not that the fact that it was reasonable was achieved by luck rather than judgment; the test is purely objective.

16. The Court of Appeal has yet to resolve which approach is correct⁸. However, in the interim the EAT has applied the Tarbuck approach in a number of subsequent cases. The thrust of each of these cases is that the section 4A duty envisages that the adjustments taken will have some practical consequence in terms of preventing or mitigating the difficulties faced by the disabled person at work; it is not concerned with the process of determining what steps should be taken. Thus the following consequences / implications have been identified:

i. Employers had not failed to make a reasonable adjustment in not obtaining and consulting on a further medical report before dismissing the Claimant: see Spence v Intype Libra Ltd (above) at paragraphs 12 – 14, 38 – 40 & 43. There is no distinction in principle between a failure to consult an employee (addressed in Tarbuck) and other investigative steps that an employer may fail to take. They are part of the procedures that an employer will sensibly adopt when determining what if any adjustments are reasonable, but a failure to undertake them is not a breach of the adjustments duty;

ii. It is doubtful whether a trial period of the employee working at home can be regarded as a reasonable adjustment, since in itself it would not have the practical consequence of preventing or mitigating the difficulties faced by the disabled person at work: see The Environment Agency v Rowan (above) at paragraph 61. A trial period may be part of the investigation process that a sensible employer would adopt, but it does not appear to be an adjustment as such. A trial period is akin to a consultation or obtaining medical reports; it does not of itself prevent or shield the employee from suffering anything;

iii. An extension of the Claimant’s rehabilitation programme was not a reasonable adjustment in itself in relation to a dismissal for capability following prolonged sickness absence: see Romec Limited v Rudham UKEAT/0069/07. Such an extension may have given the Claimant a greater opportunity to prove himself, but the ET should have assessed whether and to what extent an extended rehabilitation programme would have allowed the Claimant to return to his work. Only if that question was answered could the ET answer the key question of whether it was a reasonable step to take to remove the disadvantage suffered by the Claimant;

iv. As was noted in Tarbuck (see paragraph 72), whilst a failure to consider adjustments was not in itself a breach of the duty to make reasonable adjustments; a failure to consult with the employee at the time may mean that a reasonable adjustment emerges by the time of the hearing that was never identified earlier and thus never implemented by the employer in breach of the duty: see Latif (above) at paragraphs 34 & 35.

Inter-relationship between Objective Reasonable Adjustments and Subjective Justification of Disability Related Discrimination

17. In respect of disability related discrimination (as defined by section 3A(1) DDA) an employer may justify prima facie discriminatory treatment by showing that the reason for the treatment was “both material to the circumstances of the particular case and substantial”: see section 3A(3). In Post Office v Jones [2001] IRLR 384 the Court of Appeal held that this was not an objective test. It was said (in the context of a capability dismissal) that where the employer had conducted a proper risk assessment which provided a reason that was on its face both material and substantial and was not irrational, the ET was not entitled to substitute its own appraisal of the medical evidence. Pill LJ said:

“Consideration of the statutory criteria may also involve an assessment of the employer’s decision to the extent of considering whether there was evidence on the basis of which a decision could properly be taken. Thus if no risk assessment was made or a decision was taken otherwise than on the basis of appropriate medical evidence or was an irrational decision as being beyond the range of reasonable responses open to a reasonable decision maker…….the employment tribunal could hold the reason insufficient and the treatment unjustified.”

18. Subsequent examples of disability related discrimination not being justified because an employer had failed to carry out a proper assessment before undertaking the treatment complained of have included Williams v J Walter Thompson Group Ltd [2005] IRLR 376 and High Quality Lifestyles Ltd v Watts [2006] IRLR 850.

19. Questions therefore arise as to the inter-relationship between the (apparently) wholly objective question of whether an employer has failed to carry out reasonable adjustments and the largely subjective question of whether an employer has followed sufficient due process at the time that s/he can justify a decision / action that would otherwise amount to disability related discrimination. In general it has been felt that the subjective interpretation of the justification defence creates a considerable difficulty for claimants. However, on the law as it currently stands, if an employer failed to undertake “due process” before carrying out the allegedly discriminatory action, is a claimant now in a stronger position in relation to a claim for disability related discrimination, than in a claim for a failure to make reasonable adjustments? Where, for example a long-term absentee is dismissed on capability grounds without a proper investigation first being conducted this could of itself amount to unlawful disability related discrimination, although it would not of itself amount to a failure to make reasonable adjustments (the latter depending on what practicable adjustments could be identified that would have shielded the employee from the disadvantage that s/he was suffering).

20. In O’Hanlon v Commissioners for HM Revenue & Customs [2007] IRLR 404 (considered in more detail below), Hooper LJ rejected the submission that the application of sick pay rules without any consideration of the claimant’s individual circumstances precluded the employer from establishing the justification defence, because he concluded that in the particular circumstances the employer would inevitably have come to the same conclusion even if a fuller assessment had been carried out: see paragraphs 68 – 77⁹. To similar effect, Underhill J observed in HM Prison Service v Johnson [2007] IRLR 951 that where the ET believed the employer’s decision to be reasonable, it was not to be regarded as unjustified simply because the employer can be shown to have been careless or unreasonable in his subjective thought process or in the procedure he employed: see paragraph 114 footnote 6. However, that does not necessarily address a situation where the outcome of further material investigations, had they been undertaken, is unknown. Interestingly, in Scottish and Southern Energy Plc v Mackay UKEAT/0075/06 (Elias J, President; judgment handed down 30 August 2007) observed that “a failure to investigate may in principle amount to disability related discrimination” and that such a conclusion would not be inconsistent with Tarbuck: see paragraph 44¹⁰.

21. On a more fundamental note, in O’Hanlon Sedley LJ reiterated concerns that he had previously raised in Collins v Royal National Theatre Board [2004] IRLR 395 as to the correctness of the decision in Post Office v Jones. He highlighted that the statutory provision refers to the treatment being “justified”, rather than “justifiable”, yet the latter phrase when used in the Sex Discrimination Act 1975 and Race Relations Act 1976 had been held to import an objective test¹¹.

Sick Pay and Sickness Absence

22. In O’Hanlon the Claimant had extensive absences from work as a result of clinical depression. She also had a smaller proportion of sickness absences from common ailments such as colds, stomach upsets etc. Her employer’s sick pay policy provided for full pay for the first six months absence in a 12 months period and for half pay for a further six months absence, subject to an overriding limit of 12 months in a four year period. The Claimant argued, in the alternative, that two adjustments should have been made. Firstly, that she should have received full pay whilst she was absent for reasons of disability (the “full pay argument”) and alternatively that periods of absence by reason of her disability should not be aggregated with periods of absence for non-disability related sickness, so that she would have maintained an entitlement to full pay in respect of the latter absences (the “non aggregation argument”).

22. Below the Claimant’s case was predominantly advanced on the basis that the sick pay policy was discriminatory in its application to disabled employees in general. The EAT upheld the ET’s conclusion that the full pay argument was not a reasonable adjustment, in light, in particular, of the considerable cost involved and also because the suggested adjustment would not have the effect of getting the Claimant back to work, whereas the purpose of the legislation was to assist the disabled with obtaining and maintaining employment. Before the Court of Appeal, greater emphasis was given to the application of the policy to the Claimant, rather than the policy itself. However, the Court of Appeal held that as the only factor previously identified by the Claimant as specific to her in support of the full pay argument was the hardship and consequent stress she was caused by the reduction in pay, this did not assist her contention that the adjustment was a reasonable one. It would be “wholly invidious” for employers to have to determine sick pay payments by assessing the financial hardship and / or consequential stress likely to be suffered by a particular employee: see paragraphs 44 – 47. In light of this conclusion, which was sufficient to dispose of the appeal in relation to the full pay argument, the Court did not need to deal with the Respondent’s submission that a reasonable adjustment could never entail the making of extra payment to a disabled employee. However, Hooper LJ concluded that there was “much force” in the observations made by the EAT on this issue: see paragraph 57. The material part of the EAT’s judgment is paragraphs 67 – 74, wherein it was said that “it will be a very rare case indeed” where the full pay argument would be considered to be a reasonable adjustment., but the possibility of this being the case in “exceptional circumstances” could not be ruled out. Nottinghamshire County Council v Meikle [2004] IRLR 703 (relied on by the Claimant before the EAT) was distinguished on the basis that it was a case where the Claimant was off sick due to her employer’s failures to make reasonable adjustments and if those adjustments had been made it was likely that she would have returned to work before she dropped to half-pay.

22. Thus, the combined effect of the EAT’s and the CA’s decision in O’Hanlon is to render it generally unreasonable to require an employer to alter a sick pay scheme to provide full pay to an employee on disability related absence, primarily because of the cost involved. However, the decisions leave the door open to such an adjustment being reasonable where the claimant’s particular circumstances are exceptional and are drawn to the employer’s attention at the time as meriting the adjustment. In E A Gibson Shipbrokers Ltd v Staples UKEAT/0263/07 it was suggested that O’Hanlon decided that it was “only where the making of other specific adjustments would have resulted in the disabled employee being back at work that such an adjustment would be reasonable”: see paragraph 33. It is respectfully submitted that neither the EAT nor the CA confined their characterisation of exceptional circumstances to this particular instance. However, the circumstances in which a reasonable adjustment would arise outside of it are likely to be very limited. Furthermore, it is possible, that in a case involving much less generous sick pay provisions, that had not been the subject of collective agreement, a claimant might have a more promising basis for attacking a failure to amend the sick pay policy itself as unreasonable.

22. As regards the non aggregation argument, the CA agreed with the EAT that this adjustment was also not reasonable on grounds of cost and in light of the absence of special circumstances applying in the Claimant’s case: see paragraphs 61 and 62.

22. The Court of Appeal’s reasons for rejecting the appeal on justification have already been summarised at paragraphs 20 (above).

22. In O’Hanlon, by cross appeal the Respondent challenged the findings of the EAT that a duty to make reasonable adjustments arose at all and the conclusion that the Claimant was treated less favourably for a reason related to her disability in having her sick pay reduced by virtue of the extent of her absences. Although it was unnecessary to deal with these arguments in detail the Court of Appeal indicated that the EAT was correct in these conclusions. The Respondent had relied on the fact that the Claimant was treated no differently from other employees and, it was said, was treated in the manner she complained of because a policy had been applied to her, rather than for a reason related to her disability. It was also submitted that the approach to the identification of the correct comparator set out by the Court of Appeal in Clark v TDG t/a Novacold [1999] IRLR 318 only applied to cases of dismissal.

22. The Court of Appeal rejected these submissions and adopted the reasoning of the EAT that Clark applied and required that the comparison be made with someone who had not had disability related sickness absence. Less favourable treatment (and substantial disadvantage) was thus established as such a person would not have suffered the loss of pay as they would not have been absent: see paragraph 86 CA and paragraph 82 EAT. In support of the cross appeal the Respondent had contended that the guide dog example deployed by Mummery LJ in Clark was incorrect; an application of a no-dogs rule involved no less favourable treatment for a reason related to disability, as it was simply the application of a policy applied to all. Hooper LJ showed why that approach was wrong, setting out the logical analysis that should be undertaken pursuant to section 3A(1) DDA if the guide dog example was transposed to the employment context: see paragraphs 86 – 90. In short, in that situation the reason for refusing the blind man access to work is because he wishes to bring his dog with him and that reason relates to his disability of blindness as the animal is his guide dog. The comparison is with those to whom that reason does not apply – those who do not seek to bring their dogs to work – and thus the claimant has suffered less favourable treatment for a reason related to his disability¹².

HEATHER WILLIAMS QC

2 December 2007

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