Karen Jackson discusses the first case of disability discrimination on motor neurone disease in the UK and the barriers faced by employees bringing similar claims

The case of Johnson v Fortress Investment, which was heard by the Central London Employment Tribunal in July, is apparently the first disability discrimination case on motor neurone disease (MND) in the UK. MND is a progressive condition which attacks the nerves in the brain and the spinal cord, leading to weakness, loss of mobility, speech, and other faculties, and early death. In 2015 the ice bucket challenge raised over £7m for MND in the UK.

The claimant, Mr Johnson, was allegedly dismissed for poor performance within days of returning from sick leave. He had taken up to twenty periods of absence in the run-up to his diagnosis.

Johnson, a managing director in the asset management credit team, says he was never warned about performance and had been given positive feedback and a bonus before he was dismissed in September 2015. He says that at the time of dismissal he could barely walk across the lobby. Fortress says the position was ‘just not working out’, that the dismissal was unrelated to his condition because the company did not know about it, and that Johnson exaggerated his symptoms.

Definition of disability

The legal issues in the case centre on two principal areas. The first is that different rules on the statutory definition of disability in the Equality Act 2010 apply to progressive conditions. Most impairments, unless they are deemed disabilities (as with HIV, multiple sclerosis, or cancer), have to produce a substantial long-term adverse effect on normal day-to-day activities before they can amount to a disability. This is a high hurdle.

Schedule 1, part 1, paragraph 8 of the Act provides that if a person has a progressive condition, as soon as there is any impact on daily activities, the impairment will be a disability if the condition is likely to have a substantial impact in the future. Likely means ‘could well happen’ following SCA Packaging v Boyle [2009] UKHL 37.

Since MND leads to severely disabling consequences, as soon as any symptoms are present the condition is protected. The requirement to demonstrate substantial impact falls away. On this basis Johnson will have had little difficulty demonstrating that he has a disability under the Act. Knowledge of disability

The major hurdle for Johnson, and the chief line of defence for Fortress, is the extent to which Fortress knew that he was disabled. Knowledge is an area of particular challenge for claimants unless the employer has explicitly been put on notice.

Johnson said in evidence that he had confided in his colleagues about his health issues. In Gallop v Newport City Council UKEAT/0118/15, the Employment Appeal Tribunal held that knowledge cannot be imputed even where the fact of the disability is already known within an organisation.

The focus of enquiry is the thought processes of the decision maker. The ultimate question is: did the decision maker know of the disability and did it influence the decision? This is the ‘reason why’ test. Johnson will have to have led the tribunal to evidence which demonstrates that there was knowledge of his disability and that it was an effective or substantial reason for his dismissal. It remains to be seen whether he has succeeded.

Note that no duty to make reasonable adjustments arises unless the employer knows both that the employee is disabled and there is a provision, criterion, or practice that places the employee at a disadvantage to non-disabled people.

Knowledge is key: under section 15 of the Act, discrimination arising in consequence of disability requires knowledge; under section 19, indirect discrimination does not. This would be one of very few motivations to ever plead section 19 disability discrimination.

Presumably Johnson has also run a perception discrimination claim under section 13. This is an area of disability law that is developing. If Fortress did not know, perhaps the company assumed that because of his many absences there was an underlying disability and took steps to dismiss him before being put on notice.

We await the reserved judgment of the tribunal with interest.