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Me Too. Black Lives Matter. Could disability be the next area to receive a global social media movement and legislative pressure on employers to do more?

In this episode of Employment Law Focus, we look at the inevitable rise of the disability agenda at work and the trickiest areas for employers to get right, including:

  • The merits of pay gap reporting, quotas and an inclusive workplace culture

  • Employer attitudes when deciding what is/is not a disability

  • The different types of disability discrimination and knowledge tests

  • The tricky business of using medical reports

We also explain cases covering:

  • Concealment of a disability

  • Assuming the knowledge of your agents

  • “Reasonable” adjustments including cost

Our listener question looks at four-day working weeks and what employers should consider when defining the scope of a trial.

Useful link: EHRC Code of Practice

Thanks for listening and let us know if you’re enjoying the podcast or if there’s a topic or question you’d like us to cover. You can email [email protected] or tweet us @TLT_Employment or use the hashtag #TLTEmploymentPodcast

Transcription

Jonathan

Hello, and welcome to Employment Law Focus. I'm Jonathan Rennie, a partner in our national employment team based in Glasgow, and I'm joined by Leeanne Armstrong – Leeanne's a legal director in our Belfast office – and Sarah Maddock who's a professional support lawyer in our Bristol office.

Now, we often talk about equalities in this podcast, but today we're throwing it right under the spotlight and taking a look at something that we are going to hear a lot more about in the coming months. And that's the impending rise of the disability agenda.

If you cast your mind back to July 2021, you might remember the government launched a new National Disability Strategy, aiming to provide better job prospects for people with disabilities. The strategy includes plans to consult on mandatory disability workforce reporting for businesses with more than 250 members of staff, and also a new online hub offering employers and disabled employees advice on disability discrimination, flexible working and obligations around reasonable adjustments.

Disability charities are saying that it will not lead to transitional change and that it doesn't take on board the voice of disabled people. Leeanne and Sarah, what did you make of it?

Leeanne

Jonathan, I think it's been a long time coming and the pandemic has obviously made it more urgent. So, I think it was always going to mean that expectations for something ambitious or transformational were really going to be very high.

You know, the unemployment rate for disabled people was 8.4% in the first quarter of 2021. And you can compare that with 4.6 for those without disabilities. And even beyond disabled people trying to find employment, for those disabled people in work, there are a whole range of barriers that they're trying to overcome

The employment rate for disabled people in Northern Ireland is the lowest of all the regions in the UK, at just 37.3%. And research from Scope also found that disabled people make 60% more applications for work than non-disabled persons before they secure a role.

Where we have seen some interesting change in Northern Ireland is in relation to the area of gender pay gap reporting. Now, it went one step further than in GB, in that it has provided an employer requirement to produce statistics within each pay band in relation to ethnicity and disability. Whilst this relates specifically to pay, so just one area as part of a bigger picture, it does demonstrate, I think, the intention of legislators in recent years to focus on highlighting and addressing pay disparities in minority groups within the workforce.

Jonathan

Yeah, I think it's great to hear NI leading the way there, and hopefully something that we can follow in other jurisdictions.

Sarah

Yeah, it does seem to me like this is a societal movement and a legal movement, which is gathering pace at the moment.

We've just enjoyed watching the Paralympic Games in Tokyo. And a new campaign was sparked by that led by the International Paralympic Committee called WeThe15, which is set to become the world's biggest human rights movement, looking to represent those 1.2 billion people with a disability, to raise awareness and change attitudes and create more opportunities and drive forward that change.

It is perhaps just a matter of time for another big social media type movement to come along and galvanise the disability movement, which might then in turn spark legal reforms.

Jonathan

Yeah it came to my attention that there's a guy called Steve Ingham. And he's the chief executive of a global recruitment company, the PageGroup, and he is himself a wheelchair-user. And in March this year, he co-signed a letter to the Prime Minister urging for what we're talking about really, the introduction of mandatory reporting on the disability pay gap. And he also wanted there to be minimum thresholds for disabled people in larger companies. And as a chief executive, he was making the point to government that sometimes business leaders take the view that, "Listen, this is too difficult. It's too complex an issue to grapple with."

Sarah

It's worth noting that the charity Business in the Community has published some research, which shows that there is a direct correlation between improved equalities within organisations and reporting obligations. So you would expect the same result here if disability pay gap reporting does become law.

Jonathan

You mentioned the Paralympics there, Sarah. I really enjoyed watching that and also seeing progression in that event over the last number of years. I noticed that the sprinter, Jonnie Peacock, the 100 meters and 200 meters Paralympian, he was making this point about the pay gap. But he was doing it in a slightly different way. He was saying that he was the face of the Tokyo Paralympics, but he was aware, when he goes around the Diamond League circuit in Europe, that he's not being paid the same as the able-bodied athletes. And he was calling that out.

So we're starting to see these voices building up. In Japan, they have what we might call a job quota system for people with disabilities. And they have reports and fines for employers that don't comply. So that's another approach that countries take. I know that South Africa, for example, has this in respect of job roles for Black Africans.

Now, critics say that that focus on quotas might lead to the situation where there's a focus on that rather than the skills for the particular job. And that misses the point about inclusion. So, should there be more pressure placed on firms to reflect on this idea of diversity and that idea of quotas, Leeanne?

Leeanne

Well, it almost seems inevitable to me. And I think, if I was a HR director, I would be anticipating this and I would want to make sure it’s something that we’re on the front foot with.

I mean, what we're looking at here is effectively a sort of positive discrimination really, to address the imbalance. And certainly, in Northern Ireland, we have seen that used in other areas of equalities law. One of the most high-profile examples was the Police Service of Northern Ireland's 50-50 recruitment campaign, which ran for a number of years in the early 2000s. It was aimed at encouraging applications from members of the Roman Catholic community.

And if we look at the issue of disability, it is about ensuring that there's fair participation in the workforce between non-disabled and disabled persons, tackling the issues that might reduce participation and setting targets as a means of measuring the progress on any agreed plans that an employer has implemented. But, without employers examining the factors in their own workplace that are resulting in reduced participation for disabled people, the work can't actually begin to remove or reduce barriers.

Sarah

So having looked at some of the really interesting anticipated changes on the horizon, it might be timely now to just have a look at some of the more granular, legal aspects of disability discrimination. I think, Leeanne, you're going to just talk us through the basic framework around the legal definition of disability, which is really quite specific, isn't it?

Leeanne

It is, yeah, Sarah. And disability in many ways, is more complex really than gender for example, because there's a bigger range of situations protected under the law. No two disabilities will present with the same answer or the same responses. You also have invisible disabilities such as epilepsy and depression, as well as those more physical, outward disabilities that present in the workplace.

And under the Equality Act of 2010, and also the disability discrimination legislation in Northern Ireland, the definition of disability is much the same. So what we're looking at here legally, is a physical or mental impairment that has a substantial and long-term, negative effect on your ability to carry out normal day-to-day activities.

And employers can sometimes be too quick to dismiss something as not a disability. And the danger is that tribunals don't look kindly on this. It needs careful consideration and some advice from a lawyer because this is an incredibly complex area of law.

Jonathan

Yeah. I think for me, when I was initially working on litigation cases, I used to have employer clients wanting me to deny disability and therefore, to put extra time and cost on the claimant. I particularly remember a case where there was a claimant with a hip condition. We went along to the employment tribunal and the claimant wasn't able to go up the stairs in the tribunal, which didn't have a lift. And I do remember being there thinking, "This is somewhat ridiculous because I've obviously lost a disability point before I even go into the courtroom, because it's actually self-evident."

And so nowadays, in looking at it, we have to recognise the obvious point. If somebody's day-to-day activities are impacted in that way, they will very likely meet the disability threshold.

I think also, an advice piece that we often get asked and is worth covering off, is the idea that somebody's off sick, but they've been spotted fishing, socialising, whatever, at a restaurant God forbid, out of the house...and whether that's something that should be used in assessing the disability definition.

And of course we know now, for example, I think there's councils in Scotland where GPs are prescribing fishing or outdoor activity or walking to assist people with mental health issues. You know, that aspect of having spotted somebody outside really isn't relevant to the idea of why they're off sick. And that's the point about social prejudice that we're going to talk a little bit further on.

Leeanne

Going back to our August 2020 podcast where we looked at unconscious bias, we talked about one definition of this being “Learned behaviour around social stereotypes that are automatic and unintentional, and can make us unaware of how it shapes our decision-making, as they're not consciously thought through”.

So, we have the added difficulty of people potentially tackling both conscious and unconscious bias towards disabled people. And many employers might rush to tick a box with some unconscious bias training in this aspect. And the reality is, ED&I training needs to be something that is embedded in the workplace, it needs to be embedded in workplace practice and culture.

Jonathan

So one of the areas that's really quite technically difficult here is what we call the difference between actual and constructive knowledge of disability. So the starting point is that for the legal obligations to be triggered on an employer, they must know that a member of staff – that's an employee or a worker – is disabled.

So an employer could be tempted to think that if they don't know that the person's disabled, then they don't have to do anything. In other words, that they can turn a little bit of a blind eye, or that they might want to be careful not to stimulate a claim.

Now, this is quite a tricky area. We're going to talk about some cases, but then we're going to talk about some practical tips because it is possible to get really animated about this technical language.

So when it comes to this idea of knowledge of disability, the knowledge test is actually different for the different types of disability discrimination, which seems a little unhelpful. I wonder, Leeanne, then, tell me about the obligation to make reasonable adjustments?

Leeanne

So, Jonathan, this is a positive duty that exists on employers where they have a disabled employee in the workplace, or indeed a job applicant who is disabled. And it arises where someone with a disability is disadvantaged by a provision, criterion or practice, a physical feature on an employer's premises, or a failure to provide an auxiliary aid.

Jonathan

Yeah. I find when I'm looking at this, that the Equality and Human Rights Commission Code of Practice is really helpful. And we'll put that as a link in the notes to the podcast. And then, Leeanne, we've got direct and indirect disability discrimination.

Leeanne

Yeah. So direct disability discrimination is less favourable treatment because of disability. Indirect disability discrimination is slightly more complicated, in that what you are looking at is an employer who, on the face of it, has applied a provision, criterion or practice to everyone. But when it's applied, it has a disadvantageous impact on disabled people.

Now, employers have an opportunity to provide objective justification grounds for doing a certain thing or applying a certain PCP where it has that disadvantageous impact on a disabled person. But if they cannot justify it, then they will fail.

So an example of that might be: failing a medical test may disadvantage a disabled person, but that may well be justified if the employer shows that there's a need for employees to have a specific level of fitness for a role.

Jonathan

But then there's another one which is discrimination arising from disability.

Leeanne

So, discrimination arising from disability is something that is unique to the area of disability alone. And I'm also going to point out at this time as well that under the Northern Ireland legislation, we don't have provision for discrimination arising from disability. But it is effectively somebody who is treated unfavourably because of something arising from, or in consequence of their disability. And again, there is opportunity for an employer to objectively justify that treatment, but if they can't do so they will fail.

For example, someone is before a disciplinary for a gross misconduct. And the individual is saying, "Well, actually, I suffer from a mental health condition. I suffer from autism and it can result sometimes in me reacting adversely. And my reaction on the date in question was as a result of my disability."

So it is complicated, but it does come up often. I see it quite a lot.

Jonathan

Yeah. It's sort of... sometimes I try and put this in simple language and I use words like, it's the manifestation of the condition. But it's like the underlying condition has caused someone to behave in a particular way. And I suppose just again, points to how wide all of the obligations are.

So Sarah, I wondered if you could talk about where this question of knowledge fits in.

Sarah

Some listeners might be quite surprised, maybe alarmed, to learn that there is absolutely no knowledge of an employee's disability required in order for an indirect disability discrimination claim to be triggered.

And perhaps the best way to explain this is by case example. It's called Bevan v Bridgend County Borough Council. It's an employment tribunal case from back in 2012. And the employee in question suffered from a anxiety or a phobia around travel following on from a road traffic accident. And as a result of that, she was dismissed.

An employment tribunal looked at this and said that her dismissal amounted to indirect disability discrimination. And that was notwithstanding the fact that the employer had absolutely no knowledge whatsoever about this person's travel anxiety. And also, the employee didn't make any effort whatsoever to bring that to her employer's attention. It resulted in an award of over £50,000 against the employer. Although, having said that, there was a 20% reduction to account for the employee's failure to speak up about her problems.

In order to bring a claim for direct disability discrimination or discrimination arising from disability, a claimant will not have any claim unless their employer actually knew or ought reasonably to have known that the person in question was disabled.

Jonathan

So I'm going to talk about this point of knowledge in the area of discrimination arising from disability in a case. And then I'm going to give some practical thinking and tips around that.

So this “arising from disability” is probably the most complex issue that employers can be faced with. And we have the Equality and Human Rights Commission Code of Practice saying that an employer must do all that they reasonably can do or be expected to do, to find out if a worker has a disability. So, some contrasting guidance.

In the case of A against Z, the employment appeal tribunal overturned a tribunal's finding that an employer, A, had constructive knowledge that its employee, Z, was disabled. While Z was disabled by reason of mental impairments, she had gone to considerable lengths to conceal them or hide them. And she had explained sickness absences by reference to physical ailments and avoided full disclosure to the employer.

The employment tribunal initially found that as a result of the information provided on a GP certificate about sickness absence, that the employer ought to have made inquiries about her health. The employment appeal tribunal held that the tribunal should have asked the question, what the employer might reasonably have been expected to have known had it made those inquiries. So there was a recognition then, given the tribunal's findings, that the employee would have continued perhaps to suppress, conceal, hide the information about her mental health problems.

And this is really quite a helpful case, but it's also quite complex on the facts around concealment and the obligations on the employer. So I want to just bounce around some tips for an employer on the basis of that case, so as to avoid getting really drilled down into this idea of who knows what and when.

What can an employer learn from this case? Well, the first point is that employees may not be forthcoming about their condition. They may have a whole host of reasons for not wanting to acknowledge it, talk about it, share that information.

Occupational health reporting can assist in providing informed medical reporting. But I suppose if we go beyond the legal framework, then in an ideal world, if an organisation had a supportive environment and a culture around wellbeing and health at work, it might be that staff are more encouraged to be open and transparent about their conditions.

Now, I know we don't live in that perfect world, but sometimes in reading cases, you get the impression that simple, or if we call them nice questions, simply haven't been asked. Now, that's where I think human resource practitioners and the employee relations side can really kick in offering those human conversations, enabling trust in disclosing medical conditions to be more commonly forthcoming.

Leeanne

Employers also need to be alert to the fact that when it comes to the question of knowledge, they could well be liable for acts of their agents. The Equality and Human Rights Commission Code states that if an agent knows of an employee, applicant's or potential applicant's disability, the employer will not usually be able to claim that they did not know of the disability. Now, that seems incredibly complicated and I can imagine employers are thinking, "How do we manage that?"

Sarah

I think we can illustrate by a case called Gallop v Newport City Council, which came out in 2013. An occupational health advisor confidently informed an employer that an employee suffering from a whole shopping list of conditions, ranging from lack of sleep through to nausea and lack of appetite and insomnia, was not disabled for Equality Act purposes. The employer in question took that at face value and decided that their obligations towards that employee were not triggered under equalities legislation.

Now, the Court of Appeal came along and said that the employer was wrong to have unthinkingly followed an occupational health advisor's opinion that an employee was not disabled. Just to give a real life analogy to this, if I may, is when my nine-year-old confidently informs me that he has indeed brushed his teeth before bed. As a responsible parent, I don't blindly accept that statement when I know full well that he's been in the bathroom for approximately 25 seconds. I will go in and see whether his toothbrush has been used, is the sink wet, and does his breath smell vaguely of minty fresh toothpaste?

Jonathan

So let's talk about our practical experience of medical reports and how we deal with them in the context of disability discrimination. We know, of course, that employers are not expected to be medical experts. But there's some helpful thinking we can add into the mix here, I think, Leeanne, around how to manage occupational health.

Leeanne

I think it's important to remind our listeners of the purpose of a referral to occupational health. So it's not to get information on the employee's disability generally, but it must be with reference to their ability to do their job, any adjustments that might be required to that job, or potentially, alternative employment where they're not fit to carry out the current role that they're in.

Jonathan

I think, Sarah as well you'll have some thinking on this perhaps around the fact that, of course, as a law firm, we have questions, template questions that we put to occupational health. But I have a frustration that within the Equality Act, there isn't actually a schedule, an agreed form of questions. Because I think that would cut down some of the time, some of the uncertainty. Of course, medical professionals can be very busy and maybe don't always have the time to give the fullest of reporting.

Sarah

Yeah. I think the legislators definitely shied away from including any very prescriptive schedules in the Equality Act regarding how to break down the definition of disability and how to identify that. So the onus is definitely on employers to come up with their own scheme of questions and design that themselves. And as you say, that does lead to some inconsistency.

Leeanne

I have seen in the past, discrimination claims where one of the alleged acts of discrimination actually arises from how questions have been presented to an occupational health advisor to address an issue of absence.

And yes, you can have templates and you can have guidance that you can use, but ultimately, it needs to go back to, what is it I want the occupational health advisor to tell me? Do I need this person to participate in a meeting? Does he need to participate in a performance meeting, a capability process, a disciplinary process? Or is this employee absent from work and I'm trying to discover whether or not they're fit to return to their duties, or whether or not I maybe need to consider an alternative role?

So, you might set out, for example, the employee's current duties, what it is they're doing. And you might ask in the first instance, are there any adjustments we can make, taking account of the employee's condition and its effects, to enable them to carry out their role effectively? Or if you are already making reasonable adjustments for an employee, you could present the occupational health advisor with a list of the things that you're already doing and ask them if they think there's anything else that might assist the employee to carry out their duties effectively.

Jonathan

Yeah, I like that one, Leeanne, because then you have the audit trail and it's evident that the employer is trying to do the right thing. I mean, in this area of occupational health reporting, and we're going to move into the realms of reasonable adjustments shortly, but one of just the really basic simple management of occupational health reporting can be meeting somebody offsite in a coffee shop or in a location that they're happy to meet in – to manage the process that way, rather than having these, as I say, perceived communication barriers or the intimidation of coming into the office or staff being worried that they're going to be spotted discussing these issues. So, some sensible tips there.

Leeanne

So, what knowledge is required when it comes to reasonable adjustments? Well, the employer must have actual knowledge, or they must reasonably be expected to have knowledge of the employee's disability in order for a claim to arise. And they must have knowledge of both the disability and the substantial disadvantage caused by that disability. So this is where it sort of diverges from the others.

This is another way that the disability agenda differs from gender, race, sexual orientation etc. Employers have to go that bit further than treating everyone the same. They must level the playing field for disabled employees. And again, this is where education and understanding is so important because how a condition is perceived can affect how it's managed. And this could be the difference between compliance with your duty to make reasonable adjustments and failing to do so.

For example, in a 2018 employment tribunal case involving Sherbourne against N Power Ltd, an employee suffering from autism was required to work in an open-plan setting, which led him to feeling overwhelmed and distracted. So he brought a claim for indirect disability discrimination and failure to make reasonable adjustments after his employer dismissed him under a capability procedure.

Now, upholding the claims, the employment tribunal said that there had been continuous management failure to understand the employee's disability and to implement reasonable adjustments, including those that were recommended by occupational health. It was claimed by the employee's line manager in response to this, that they couldn't implement the adjustments because they didn't have adequate training. And I suppose leading on from that, it just raises the question of how far an employer actually needs to go then when considering adjustments.

Jonathan

Thanks, Leeanne. I think you and I both know that when employers contact us about reasonable adjustments, almost inevitably, one of the first questions is, what about the cost? Or how much is it reasonable for us to spend? And of course, there isn't a formula here, there isn't anything detailed in the Equality Act or the EHRC Code of Practice as to how you look at that. But there is some helpful case authority.

And I was going to say the famous case, but famous for employment lawyers, of Cordell v Foreign and Commonwealth Office. So the FCO is a government entity with a substantial budget. And the question was whether they ought to make the reasonable adjustment to the cost of £250,000 a year for a profoundly deaf employee to have an English lipspeaker whilst they were on post overseas.

The tribunal looked at the cost and found that that was not a reasonable adjustment. The tribunal compared this with other costs such as the disabled employee's salary, which was about £50,000 and the total budget for disability for the FCO, which was around half a million pounds. And it found that the highest cost paid for reasonable adjustments in respect of any other employee was around £50,000.

Now, this case sparked quite a lot of debate. This was somebody that had worked in the FCO for all of their career and was in a senior post. The Employment Appeal Tribunal upheld the decision on appeal and gave some helpful guidance. Cost is one of the central considerations in the assessment of reasonableness, but it must be weighed up with other factors, including the degree of the benefit to the employee and the other factors which are in the ERC Code of Practice.

So, courts in this area will look at a whole host of factors and those ones of note are: the size of any dedicated budget for reasonable adjustments; what the employer has chosen to spend that on and why, and look at any comparable situations to make consistent decisions; they may look at what other employers are prepared to spend; and they will look at any collective agreement or other indication of what level of expenditure is regarded as appropriate by other organisations. And I would say, when we advise, employee salary is probably the easiest comparator point.

Sarah

Perhaps if we could just try to pull everything together and sum it all up in one pithy phrase. All you need to do as an employer is remember to treat disabled people exactly the same as everyone else, except when you need to do the complete opposite and make adjustments. And then you just need to know when these two completely opposing obligations are triggered. Even if the person you are helping might not tell you that they need help, and might not actually know that they need help themselves. So simple, then, isn't it?

Leeanne

It's anything but simple, Sarah and Jonathan. And back to our earlier point, this isn't something that can be addressed quickly. So employers would best advised to be looking at this now, make some headway so that when the law catches up with the time, they're prepared for those legal obligations, as well as the moral ones we've talked about.

Jonathan

So now for some listener questions. We always get quite a few topical questions. And one that's come in and that I like the sound of, and we talked about it before, is this question that more companies are trialling a four-day working week. Are there any laws around this as to how to define the scope of that or any trial periods or is that up to us?

Sarah

Well, I think the short answer to that question, Jonathan, is that yes, it is up to you in effect. There are no specific laws about defining the scope of trials of four-day weeks, and there's no specific guidance or requirements around how to go about that. Having said that, it would be good to stop and take a breath and consider how you go about implementing those trials. And of course, general employment law principles would apply.

So some of the questions that you would need to think about is what you're contractually obliged to do. What are the limits in your employees' contracts around their working days and working hours? If you needed to make any changes to those contracts, that would need to be undertaken in consultation with employees. And of course, always in line with that duty to maintain employees' trust and confidence.

In terms of the more practical issues, probably the most important question to ask yourself at the outset is, “What does a four-day week look like?” This might seem like an obvious question, but some of the things that you might want to consider are whether you are looking at four longer days and maintaining employees at the same level of pay. In effect, if you go down this route, what you're really doing is almost giving your entire workforce an extra day of paid holiday each week.

Another option would be to offer a reduced working week with reduced pay. Having said that, some of our listeners might have seen that there was a report published by the Social Market Foundation in July 2021, which said that 80% of workers, perhaps unsurprisingly, would be opposed to a four-day working week if that meant earning less money.

But the flip side of that for employers is that in order to maintain the same level of pay for working a reduced working week, then productivity needs to increase, apparently according to the Social Market Foundation, by 15.5% to cover that cost. So that's quite a substantial increase in productivity to meet the cost of a shorter working week if pay's being maintained.

Of course, some employers might think that the wellbeing benefits to that justify of the cost and the wellbeing benefits are hard to dispute. I think many employees would appreciate a shorter working week, but I think the general feeling is that it is more common amongst employees to feel that there is a scarcity of money rather than a scarcity of free time, as much as a bit of extra free time would be appreciated.

Jonathan

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