The sensitive issue of how employers should deal with workplace health matters has once again come to the forefront of attention in the UK.
In particular, ex-Argentina international footballer Jonas Gutierrez recently succeeded with a high-profile disability discrimination claim against Newcastle United FC – with an Employment Tribunal finding that the club discriminated against Gutierrez following a diagnosis of testicular cancer and failed to make reasonable adjustments to accommodate his condition as required by the Equality Act 2010.
A failure on the part of an employer to properly deal with workplace health issues can often result in disability discrimination claims. Successful claims can be particularly costly for employers, as Tribunal awards are uncapped. Add in the almost inevitable reputational damage that a successful claim can bring, and employers could be facing significant damage to their business.
What steps should employers therefore be considering in order to minimise the risk of successful discrimination claims from disabled employees?
Equality Act – is an employee disabled?
Increased awareness of what amounts to a disability under the Equality Act is key for employers. For example, cancer is a “deemed” disability under the Act. This means that employees with cancer are considered to be disabled from day one of their diagnosis, and during remission - irrespective of the impact of their symptoms on their day-to-day life.
However, other medical conditions are not currently deemed a disability. For example obesity is not a “deemed” disability although an Employment Judge last month voiced significant concerns regarding weight-based discrimination in UK workplaces and called for weight to be included as a protected characteristic under the Equality Act. Following the landmark ECJ decision in Kaltoft (Fag og Arbejde v Kommunernes Landsforening  I.C.R. 322), the current position is that obese employees will only be considered disabled if their obesity has a “substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”. Making a decision as to whether an employee’s obesity has such an impact will often be a difficult and highly complex one for employers to make; and will commonly involve the analysis of medical evidence from experienced occupational health (OH) specialists.
A number of recent studies show that significant numbers of employees with ill health issues believe they have been – or are being – discriminated against at work. Cancer Research UK suggests that 50 per cent of individuals born after 1960 will be diagnosed with some form of cancer in their lifetime. Separately, UK Government statistics suggest that up to 60% of the UK population is either overweight or obese.
Given the severity of these figures on both counts, increased knowledge on the part of employers is essential to ensure that all workplace health issues are dealt with as appropriately and effectively as possible.
From the outset, employers should take steps to understand an employee’s symptoms and underlying condition, including their potential impact on his or her behaviour at work. Employers have a duty to make reasonable adjustments to combat any ‘substantial disadvantage’ faced by employees who are disabled under the Equality Act. In practice, compliance with this duty will go a considerable way towards staying on the right side of the law.
Employers would be well advised to obtain medical evidence at an early stage, again preferably from experienced OH specialists who can advise on possible adjustments that work for both the employer and the employee. Continued dialogue with employees themselves is also crucial.
The key thing for employers to remember when considering adjustments is that they must be reasonable. Employers should not have a blanket view on OH recommendations, but should consider any recommendations in the light of the facts and circumstances of each individual employee’s case. No two cases of disability at work will ever be the same.
The Equality and Human Rights Commission’s statutory code of practice suggests adjustments for employers to consider, including reducing an employee’s workload, making physical adjustments to the workplace, altering working pattern or hours, or allowing a period of leave for treatment and rehabilitation.
The code also suggests modifying policies and procedures dealing with discipline, capability and redundancy may be reasonable. This doesn’t necessarily mean that disabled employees should not be involved in regular workplace processes such as redundancy exercises or performance reviews, but it is crucial that employers adjust these processes appropriately to take account of an employee’s disability, not least to avoid the risk of claims. In practice, this often involves discounting periods of disability-related absence, using historic appraisals to assess performance, and holding consultation meetings away from the workplace.
While the risk of employers receiving disability discrimination claims can never totally be eliminated, if employers take steps to understand the nature of an employee’s disability, think carefully about decisions in relation to such employees, and ensure appropriate reasonable adjustments are put in place; employers will have the best possible chance of successfully defending any such claims.
A clear understanding of what is, and what is not, a disability under the Equality Act is crucial in identifying the correct approach for employers to take. In cases of “deemed” disability, the situation is much clearer than it is when an (often complex) determination as to whether or not an employee is disabled is required under the Act’s “standard” test. In practice, obesity is a very sensitive issue and cases of alleged disability discrimination can be incredibly difficult for employers to deal with. If weight were to be expressly included in the Act as a protected characteristic, it could be argued that this would provide greater clarity in relation to weight-based discrimination cases. However no such amendments to the Equality Act are currently on the horizon.
If such an amendment were to be made, discrimination based on an employee’s weight would be unlawful and there would be no need for an employee to prove disability status in order to raise a discrimination claim. This would arguably have the potential to significantly increase the number of discrimination claims raised by employees and any amendments to the Equality Act would therefore have to be very carefully framed as a result.