DISABILITY DISCRIMINATION:
RECENT DEVELOPMENTS
Melanie Tether
Recent developments
Meaning of disability
Proving disability
Justifying discrimination arising from disability
Employer’s knowledge of disability
The duty to make reasonable adjustments
Meaning of disability
Framework Directive does not define concept
of disability
Article 1 of the UN Convention on the rights of
persons with disabilities provides:
Persons with disabilities include those who have
long-term physical, mental, intellectual or sensory
impairments which in interaction with various
barriers may hinder their full and effective
participation in society on an equal basis with others
HK Danmark
UN Convention is now part of EU law
Framework Directive must be interpreted so as
to be consistent with the Convention
Concept of disability refers to a limitation which
results from physical, mental or psychological
impairments which in interaction with various
barriers may hinder the full and effective
participation of the person concerned in
professional life on an equal basis with other
workers
Is obsesity a disability?
In Kaltoft the Danish Court asked:
Does the general principle of nondiscrimination recognised by Art 6 TEU
prohibit discrimination on grounds of obesity?
Is obesity a disability within the meaning of
the Framework Directive?
Kaltoft
EU law does not lay down a general principle
of non-discrimination on grounds of obesity
Obesity is not in itself a disability
It may constitute a disability if it entails a longterm limitation that hinders full and effective
participation in professional life on an equal basis
with other workers
The extent of a disabled person’s contribution
to the onset of their disability is not relevant

Is inability to bear a child a disability?
In Z v A Government Department the
claimant arranged to have a child through
surrogacy arrangements
She argued that her employer’s refusal of paid
leave equivalent to maternity/adoption leave was
disability discrimination
Irish Equality Tribunal made a reference to
CJEU


Z v A Government Department
Being unable to bear a child is not a disability
within the meaning of the Framework Directive
because it does not constitute a hindrance to the
exercise of professional activity
The Framework Directive is not incompatible in
this respect with the UN Convention

Meaning of normal day-to-day activities
Under s. 6 EqA, an impairment only constitutes
a disability if it has a substantial and long-term
adverse effect on the ability to carry out normal
day-to-day activities
In order to give effect to EU law, the phrase
“day-to-day activities” should be given a meaning
which encompasses activities relevant to
participation in professional life – see Sobhi v
Commissioner of Police of Metropolis

Proving disability
What evidence is necessary in order to decide
whether a person is disabled?
Who should pay for expert medical evidence?
City Facilities Management v Ling
ET adjourned PHR because impact statement
and GP records not sufficient to assess disability
Employer ordered to pay for joint expert report
EAT held that:
 expert medical evidence not always necessary
 burden of proof is on claimant and it is wrong for ET

to proactively seek further medical evidence
no basis for ordering respondent to pay full cost of
joint expert report
Hutchison 3G v Edwards
ET found that E’s condition was a severe
disfigurement
It relied on E’s impact statement and a medical
report from his GP
EAT held that ET not required to carry out a
visual inspection of E or look at photographic
evidence
Discrimination arising from disability
Under s. 15(1) EqA, unfavourable treatment
because of something arising in consequence of
a worker’s disability is unlawful unless employer
can show that the treatment is a proportionate
means of achieving a legitimate aim
The principle of proportionality requires the ET
to weigh the real needs of the undertaking
against the discriminatory effects of the treatment

Burdett v Aviva
B was a paranoid schizophrenic who sexually
assaulted two colleagues after he stopped taking
his anti-depressant medication
ET found that the dismissal was because of
something arising in consequence of B’s
disability
However, it held that dismissal was justified by
a legitimate aim, namely “adhering to appropriate
standards of conduct in the workplace”


Burdett v Aviva: EAT
The ET had failed to engage with A’s stated
legitimate aim, which was to ensure the future
safety of its employees (an aim that was
protective rather than retributive)
The ET had failed to weigh in the balance the
discriminatory impact of the dismissal (which had
a devastating effect on B) against other
alternatives open to A, including the option of B
working from home

Employer’s knowledge
Employer not liable for discrimination arising
from disability or a breach of the duty to make
adjustments if it does not know, and could not
reasonably be expected to know, that the
employee is disabled
Does an employer have the requisite
knowledge if its OH advisers express the view
that the employee is not disabled?

Gallop v Newport City Council
G absent from work for long periods because of
depression found by ET to be a disability
Medical certificates from G’s GP stated that his
absences were due to depression and anxiety
OH reports acknowledged that G was suffering
from symptoms of depression and anxiety but
expressed the view that he was not a disabled
person, without giving any reasons for that view
Gallop v Newport City Council: CA
Employer has requisite knowledge if it has
actual or constructive knowledge of the facts
constituting the disability
Not necessary for employer to know that, as a
matter of law, the employee is a disabled person
Newport could not rely on their unquestioning
adoption of OH’s unreasoned opinions
An employer seeking outside advice must ask
specific practical questions



Duty to make reasonable adjustments
Arises where a provision, criterion or practice
(PCP) or physical feature of premises puts a
disabled person at a substantial disadvantage in
comparison with persons who are not disabled
Gives effect to Article 5 of the Framework
Directive (Reasonable accommodation for
disabled persons)

Associative discrimination
The principle of equal treatment not only
prohibits direct discrimination in respect of an
employee who is herself disabled but also makes
it unlawful to discriminate against an employee
because she is associated with a disabled person
– see Coleman v Attridge Law
Does the concept of associative discrimination
apply to the duty to make adjustments?

Hainsworth v MoD
H was civilian employee working in Germany
Requested a transfer to UK so that her
disabled daughter could attend a school for
children with special needs
H contended that MoD’s duty to make
reasonable adjustments included a duty to make
adjustments to accommodate her disabled
daughter

Hainsworth v MoD: CA
Framework Directive did not require MoD to
make adjustments for benefit of H’s disabled
daughter
Clear focus of Art 5 is on provisions to be made
by employer for its disabled employees
Wording of Art 5 gives no clue as to proximity
that would be required for another disabled
person to be “associated” with the employee
No need for reference to CJEU



Absence management polices
Does the duty to make reasonable adjustments
for a disabled person require an employer to
make adjustments to an absence management
policy?
This question will be considered by Court of
Appeal in Griffiths v Secretary of State for
Work and Pensions in February 2015

Griffiths v SoSWP
G is disabled due to post-viral fatigue and
fibromyalgia
SoSWP operates Attendance Management
Policy (AMP) with “consideration points” for
formal action, eventually leading to dismissal
G contended that SoSWP should rescind
written warning and increase her consideration
point for the future from 8 to 20 days in any
rolling 12 month period to accommodate her
disability

Griffiths v SoSWP: duty point
EAT held that duty to make reasonable
adjustments not triggered because AMP did not
put G at a substantial disadvantage in
comparison with persons who were not disabled
Proper comparator was a non-disabled person
absent for sickness reasons for same amount of
time as G but not for disability-related sickness
C had been treated at least as well as such a
comparator


Griffiths v SoSWP: adjustments point
The adjustments sought by G were not within
the scope of the statute, as they would not assist
G to carry out her work but simply facilitate her
absence from work
ET was not wrong to hold that G was seeking
an unlimited uplift to her consideration point and
had been entitled to find that the adjustments she
sought were not reasonable

General Dynamics v Carranza
C had lengthy periods of absence which were
related to his disability and had previously
received a final written warning
After a period of absence unrelated to his
disability, C was dismissed
C complained that respondent breached duty to
make adjustments by failing to disregard his
disability-related absences and his final written
warning when deciding whether to dismiss him


General Dynamics v Carranza: EAT
Cases involving dismissal for poor attendance
can be difficult to analyse in terms of duty to
make adjustments and may be best considered
under s. 15 (discrimination arising from disability)
The mental process of disregarding a warning
was not a “step” within the meaning of s. 20 EqA
Employer not required to disregard all C’s
disability related absences, whatever the impact
of doing so


Firstgroup plc v Paulley
Was F’s policy of requesting but not compelling
non-wheelchair users to vacate the wheelchair
space on a bus if a wheelchair user wanted to
use it a breach of the duty to make reasonable
adjustments?
Judge held that the PCP was “the policy of first
come first served whereby a non-wheelchair user
would be requested to move but if the request
was refused nothing more would be done”

Firstgroup plc v Paulley: CA
The PCP must reflect the base position before
adjustments are made for disabled persons
It includes any practice or policy which applies
to everyone, but excludes any adjustments
Where an adjustment is made to a PCP to
accommodate a disabled person, the real
question to be decided is whether that
adjustment goes far enough
Firstgroup plc v Paulley: the PCP
PCP was F’s policy of first come first served
Policy of requesting but not requiring nonwheelchair users to move was not part of PCP
but an adjustment intended to comply with F’s
statutory duty to make reasonable adjustments
It could not therefore be taken into account in
deciding whether policy of first come first served
put wheelchair users at substantial disadvantage
in comparison with non-wheelchair users

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