Protection against discrimination on grounds of disability has been in place for just over 20 years, yet the legal nuances with which employers have to comply continue to develop, as two recent cases clearly demonstrate.
What the law says
Under the Equality Act 2010 one of the duties placed on an employer is to make reasonable adjustments when there is a provision, criterion or practice (PCP) which puts a disabled person at a substantial disadvantage compared with a non-disabled person.
In addition, employees are protected against discrimination arising from disability where they are treated unfavourably because of something arising in consequence of their disability, and the employer cannot show that the treatment is a proportionate means of achieving a legitimate aim.
Brief facts of the case - Carreras v United First Partnership Research
Mr Carreras was employed as an analyst. He suffered a serious bike accident following which he was affected by physical symptoms such as dizziness, headaches, fatigue, and difficulty concentrating and working late in the evenings.
Prior to his accident he had regularly worked long hours, typically 12 hours a day finishing at 9pm. In the 6 months following the accident he worked no more than 8 hours a day, thereafter increasing this to around 11 hours a day but finishing by 7pm. He came under pressure from his employer to work later, which progressed to an assumption that he would do so. He objected to this and following a verbal exchange with one of the owners of the business Mr Carreras resigned.
Mr Carreras claimed that his employer had failed to make reasonable adjustments in relation to the requirement to work long hours. Initially the Employment Tribunal dismissed his claim, stating that they could find no requirement to work long hours and therefore no PCP which placed Mr Carreras at a substantial disadvantage. However, the Employment Appeal Tribunal (EAT) allowed Mr Carreras' appeal, stating that the fact Mr Carreras felt obliged to work late was enough to establish a PCP. The case was therefore sent back to the Employment Tribunal for further consideration.
Mr Risby is a paraplegic who was employed by London Borough of Waltham Forest (LBWF). In 2013 LBWF decided to organise workshops for their managers, including Mr Risby. Initially it was intended that these take place at a private venue which had wheelchair access so was accessible to Mr Risby. However, in June 2013, a decision was made by LBWF's chief executive that external venues should not be hired going forward for cost-saving reasons and the venue for the workshop to be attended by Mr Risby was changed to the basement of one of LBWF's buildings. The basement did not have wheelchair access and so was inaccessible to Mr Risby.
Mr Risby became very upset and angry about this. He lost his temper and shouted at a junior colleague bringing her close to tears. Following a disciplinary investigation and hearing, Mr Risby was summarily dismissed.
Mr Risby brought a claim of discrimination arising from disability. The Employment Tribunal found that he had no mental impairment qualifying as a disability as his short temper was a personality trait not related to any disability. However, the EAT allowed his appeal and remitted the case back to the Employment Tribunal for rehearing. As far as the EAT were concerned, all that had to be established was that Mr Risby's conduct arose in consequence of his disability. The EAT reasoned that if Mr Risby had not been disabled by paraplegia, he would not have been angered by LBWF's decision to hold the workshop in a venue he could not access. The fact that Mr Risby's personality trait of shortness of temper, which did not arise from his disability, was also a cause of his conduct, did not mean that the other cause, which was related to his disability, should be disregarded. As such, the test for discrimination arising out of his disability had been met, although it is still open for LBWF to defend the claim on the basis that their actions can be objectively justified.
What do these cases this mean for employers?
In Mr Carreras case, his employer had asked him to work late which was sufficient for the EAT to find a PCP existed. However, it is clear that workplace culture, involving both spoken and unspoken rules, can make people feel obliged to work in a particular way. Given that Employment Tribunal's tend to interpret PCP's broadly, it is not hard to envisage even unspoken rules being enough for a PCP, meaning that the scenarios which could give rise to the duty to make reasonable adjustments are potentially limitless.
Employers should therefore be mindful of the culture, both explicit and implicit, within their organisation and carefully consider whether this places any disabled employees at a substantial disadvantage, thereby triggering the duty to make reasonable adjustments.
The decision in the Risby case should not be taken as a suggestion that it is incorrect to sanction an employee in Mr Risby's situation. However, where disciplinary action is taken against a disabled employee, employers should carefully consider whether the employee's disability had any impact on the conduct in question and if so, take that into account when deciding on the appropriate level of sanction to apply.