Three recent cases have clarified some interesting questions in this area. The EAT's decision in Truman will be helpful to employers in defending claims of disability-related discrimination. However, in Grey the EAT has made it harder for employers to rely on a lack of knowledge in failure to make reasonable adjustment cases. The long-awaited decision of the ECJ in Stringer ends any hope that holiday will not accrue during longterm sickness absence.
Comparators in disability-related discrimination cases
The EAT in The Child Support Agency (Dudley) v. Truman (2009) has applied the House of Lords' approach in London Borough of Lewisham v. Malcolm (2008) to comparators in employment cases. Malcolm was a housing case in which the House of Lords overturned the longstanding test for deciding who the correct comparator was in disability-related discrimination. The Lords decided the correct comparator was a nondisabled person in the same circumstances as the disabled person. This means that, for example, the comparator in a case of long-term sickness absence would be someone who had been off sick for the same period as the disabled employee. This makes it much harder for employees to show that they have been treated less favourably, so will mean that they are far more likely to fail at the first hurdle in claims of disability-related discrimination. The Truman case confirms that the Malcolm comparator test will also apply to employment cases.
Following the decision in Malcolm the Government began a consultation about applying indirect discrimination to disability discrimination. The consultation has recently ended and several bodies have objected to the proposal. Until a decision is reached employers should be aware that claims of harassment, direct disability discrimination and reasonable adjustments are likely to increase, as employees try to avoid the effect of the decision.
Holiday accrues during long-term sick leave
The ECJ has decided that workers on long-term sick leave still accrue annual leave. National law may prevent workers opting to have paid holiday while they are on sick leave, but workers must be able to take their holiday later, even if this is after the end of the holiday year. Any holiday not taken must be paid in lieu at the end of employment at the worker's usual salary. This decision, in the long-awaited case of Stringer v. HMRC (2009) (previously Ainsworth v. HMRC), settles the longrunning question about holiday during sick leave. The House of Lords must now decide whether U.K. law is compatible with the ECJ's decision. If they decide it is not, the Government will need to amend the legislation before this change is effective (although public sector workers will be able to enforce the ECJ's decision immediately). The Lords will also decide whether workers should be allowed to take paid holiday during their sick leave.
Although some questions remain unanswered the potential cost consequences of this decision for employers are extensive. Although workers are likely to welcome the decision, it may prove a double-edged sword for them. Employers could try to alter sick pay entitlement to offset some of the cost. In addition, they are now more likely to dismiss staff on long-term sick leave if possible and this may necessitate changes in the provision of PHI cover, which employees often only benefit under if they remain in employment.
Duty on prospective employers to make reasonable adjustments
Employers and prospective employers are obliged to make reasonable adjustments to premises or working practices to prevent disabled people suffering a substantial disadvantage. There is no such obligation where the employer did not know and could not reasonably have been expected to know that the person had a disability or was likely to suffer such a disadvantage. This is often helpful to prospective employers defending claims from job applicants, because the lack of an existing relationship makes the required knowledge less likely. In Eastern & Coastal Kent PCT v. Grey (2009) the EAT has made this exemption harder to rely on. Employers/prospective employers must satisfy all four of the criteria before they succeed. This means that employers must prove that they (1) did not know that the person had a disability, (2) did not know that the person was likely to suffer a substantial disadvantage, (3) could not reasonably be expected to know that the person had a disability and (4) could not reasonably be expected to know that the person was likely to suffer a substantial disadvantage.