Employers need to take particular care when making decisions regarding disabled employees and job applicants to ensure they avoid liability for disability discrimination – so knowing whether an employee is disabled under the Act and when duties arise, is key. Over the past year there have been a number of interesting cases on disability discrimination. In today’s video we’ll be looking at two of the most significant of these and their implications for employers.

Don’t forget to have a go at answering our quiz question at the end of the video for the chance to win a bottle of champagne.

The definition of disability

The first case we’re going to look at is about the definition of disability. As you’ll be aware, no employee or prospective employee can bring a discrimination claim under the Equality Act on grounds of disability, unless the “disability” in question falls within the legal definition set out in the Act.

A “disability” is defined in the Act as a physical or mental impairment which has a substantial and long-term adverse effect on the ability to carry out normal day-to-day activities.

There are also certain conditions, such as cancer and MS, which are deemed to be disabilities from the point of diagnosis without the need to satisfy each element of this legal definition.

A recent case which came before the Court of Justice of the European Union involved Mr Kaltoft, who was medically classified as severely obese. He worked as a childminder for the Danish Municipality of Billund until he was dismissed in November 2010 after 15 years of service. He claimed that he’d been dismissed because he was obese, and he brought discrimination proceedings in the Danish courts. The case concerned whether there’s a free-standing prohibition on discrimination on grounds of obesity under EU law, or whether obesity can be classified as a disability under the EU Directive.

The Court of Justice ruled that there’s no general rule of EU law which prohibits discrimination on grounds of obesity. However, someone who is obese may be disabled if:

  • they suffer from a long-term limitation resulting, in particular, from a physical, mental or psychological impairment
  • which, in interaction with various barriers, may hinder their full and effective participation in professional life on an equal basis with other workers.

The cause of the obesity is not relevant to the question of whether it amounts to a disability – so it doesn’t matter whether or not it’s self-inflicted. This makes sense given that the cause of other disabilities, such as lung cancer, isn’t relevant to the question of whether or not they should fall within the protection of the Act.

The Court of Justice, therefore, essentially came to the same conclusion as the Employment Appeal Tribunal in the earlier case of Walker and Sita Information Networking – that obesity may amount to a disability under the Equality Act, but just because someone is obese won’t mean that they’re disabled – this will depend on the facts of the case and in particular the nature of the limitations which their weight puts on them.

Obesity is a growing problem throughout the UK. The possibility that obese employees may be disabled under the Equality Act is something which employers will need to be increasingly aware of when making decisions about the employment, or continued employment, of obese employees.

Reasonable adjustments

The second case I’m going to look at relates to an employer’s duty to make reasonable adjustments and associative discrimination.

By way of background, the provisions of the Equality Act prohibit direct disability discrimination by association. These provisions implement the EC Equal Treatment Directive as interpreted by the European Court in the case of Coleman and Attridge Law. In that case it was held that the claimant, who was not disabled, could bring a claim of direct disability discrimination when she was treated less favourably because of her association with someone who was – in this case, her son.

However, can this principle extend to an employer’s duty to make reasonable adjustments under the Act where a PCP – a provision, criterion or practice - puts a disabled person at a substantial disadvantage in comparison with those who aren’t disabled?

Last year, in the case of Hainsworth against the Ministry of Defence, the Court of Appeal ruled that it can’t.

Ms Hainsworth was employed by the MoD in a teaching role based in Germany. Her daughter has Down’s syndrome. The MoD provided facilities to educate the children of employees based overseas, but these were not designed for children with significant needs. As a result, Ms Hainsworth asked to be transferred to the UK to help meet her daughter’s needs. Her request was refused and she brought a claim that the MoD had failed to comply with its duty to make reasonable adjustments under the Equality Act.

The tribunal, Employment Appeal Tribunal and the Court of Appeal all rejected Ms Hainsworth’s claim, and held that the Equality Act only requires an employer to make reasonable adjustments for an employee or a job applicant who is disabled. It doesn’t require employers to make adjustments for an employee who is not disabled, but who is in some way associated with a disabled person.

However, whilst this case has made it clear that an employer is under no legal obligation to make adjustments in these circumstances, it would obviously be good practice for employers to do what they can to help an employee who has a disabled family member. And employers must bear in mind the risk of claims of direct discrimination by association in the sort of circumstances which gave rise to the Coleman and Attridge case.

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