In the joined cases of Ring and Skouboe Werge earlier this year the European Court (ECJ) answered questions on disability discrimination, concluding that the inability to work full time because of health can, by itself, indicate that an individual has a disability for the purposes of discrimination legislation. The case may have a significant effect on UK disability discrimination law.
Danish law allows an employer to terminate an employment contract with a reduced one month notice period if the employee has been on paid sick leave for 120 days during the previous 12 months. A Danish trade union brought actions on behalf of Ms Ring and Ms Skouboe Werge, who were dismissed under this provision, claiming that because they were suffering from a disability, the short notice period could not apply to them; and, in addition, their employers were required to offer them a reduction in working hours.
As well as deciding that the use of the shortened notice provision in the particular circumstances was unlawful, the ECJ also held that:
- Disability is not defined in the European Directive, but the ECJ in Chacón Navas held that the concept is distinct from illness and refers to "a long-term limitation which results in particular from physical, mental or psychological impairments and hinders the participation of the person concerned in professional life." Contrary to the arguments of the employers, the concept does not necessarily imply complete exclusion from work.
- The Directive also requires employers to take appropriate and reasonable measures to help employees with disabilities. (Under UK law, this is the duty to make reasonable adjustments.) A reduction in working hours is clearly an appropriate measure where it makes it possible for a worker to continue in employment. As is usual in European cases, the ECJ did not decide whether on these particular facts a reduction in working hours would be a disproportionate burden on the employers – this will be an issue for the national court.
The UK statutory definition of disability looks at four questions:
- Is there a physical or mental impairment?
- Does it have an adverse effect on the ability to carry out normal day-to-day activities?
- Is that effect substantial – defined as more than minor or trivial?
- Is it long term – lasting, or likely to last, for at least 12 months?
Tribunals have traditionally given a broad interpretation to all these elements of the definition and as a result the test is not a particularly onerous one for a claimant to satisfy. However, the importance the ECJ attached to the question of whether the employee is disabled "from work" is significant. Our test is based on "normal day-to-day activities" and while tribunals do take into account the effect on an employee of circumstances which only arise at work, jobs of a specialist nature have not been regarded as a "normal" activity. Following this case, it may be safer for employers to concentrate more on the effect of the disability on the employee's ability to work and anything that prevents an employee from working (full-time) should be treated as coming within the disability definition.
The recent Employment Appeals Tribunal case of Redcar & Cleveland PCT v Lonsdale confirmed that the duty to make reasonable adjustments, which arises under UK law if the employer applies a "provision, criterion or practice" which puts the employee at a substantial disadvantage, may mean giving preferential treatment to the employee.
The claimant was employed as an occupational therapist in a "grade 6" post when her eyesight failed to such an extent that she was registered disabled. She was unable to continue with the grade 6 job and accepted one at grade 4 instead. Two years later, the employer started a restructuring exercise under which employees at risk of redundancy could apply for positions on the same grade, or one grade higher than their current post. As a result, the claimant was limited to applying for one band 5 post and she was eventually made redundant. She won her claim of disability discrimination on the basis of the employer's failure to make the reasonable adjustment of allowing her to apply for a grade 6 post.
In some circumstances an employee with a disability has to be treated more favourably than those who are not disabled; in this case it was not unreasonable to make an exception to the redeployment policy to allow for the claimant’s disability.
An argument that there was no evidence that the claimant would have been successful in applying for a level 6 role was rejected – it was enough that there was a "real prospect" of the adjustment removing the disadvantage to the employee and there was a grade 6 post that was on the face of it suitable for her.