Disability Discrimination
Case Law Review for 2010
Meaning of Disability- Mental
Impairment
• J v DLA Piper UK LLP [2010] IRLR 36 EAT
• Offered a job with DLA, subject to completing a
medical questionnaire.
• J told HR manager that she had a history of
depression. Claimed she was told that the role was
a high pressure one and that she ought to
reconsider whether it was suitable for her. A few
days later, a recruitment freeze. The offer of
employment was withdrawn.
• J claimed disability discrimination.
Is there an impairment?
• EAT –
1. whether the claimant's ability to carry out
normal day-to-day activities is adversely
affected (on a long-term basis), and to consider
the question of impairment in the light of those
findings.
2. If has been adversely affected on a long-term
basis, it will in many cases follow as a matter of
common-sense inference that the claimant is
suffering from a condition which has produced
that adverse effect - ie, an "impairment".
• If claimant's ability to carry out normal day-to-day
activities has been substantially impaired by
symptoms characteristic of depression for 12
months or more, it would in most cases be likely
to conclude that he or she was suffering "clinical
depression" rather than simply a reaction to
adverse circumstances.
• A GP is fully qualified to express an opinion on
whether a patient is suffering from depression.
Depression is a condition very often encountered
in general practice.
Recurring Conditions
J v DLA Piper
• five-year period suffers
– several short episodes of depression which have a
substantial adverse impact on her ability to carry out
normal day-to-day activities
– but between those episodes is symptom-free and does
not require treatment,
it may be appropriate to regard her as suffering from a
mental impairment throughout the period in question, i.e.
even between episodes. Treated as a single
condition producing recurrent symptomatic episodes.
Meaning of Disability – Long Term
Effect
• Patel v Oldham Metropolitan Borough
Council [2010] IRLR 280 EAT
• In order to fall within the DDA's definition
of disability, the effect of an impairment has
to be “long term”. This can be satisfied by
showing that the period for which it lasts “is
likely to be at least 12 months”.
• Mrs Patel was a primary school teacher.
• Various periods of absence from 2005 up to
dismissal on grounds of capability in 2007
• IT held not disabled on the basis that she had
suffered from two different impairments, myelitis
and myofascial pain syndrome, each of which had
lasted for less than 12 months, and it was not
“likely” that either would have lasted for at least
12 months.
• EAT allows appeal
• the duration of related consecutive
impairments can be aggregated for the
purpose of meeting the long-term threshold.
• “fine distinctions between one medical
condition and its development into another
are to be avoided.”
Direct Discrimination
• Aylott v Stockton-on-Tees Borough Council [2010] IRLR
994 CA
• A was a disabled person with bipolar affective disorder.
IT held direct disability discrimination. The reasons for
that finding included the stereotypical view taken of
mental illness by the council in its reactions to A’s
disability. Overturned by EAT.
• Issues with his work and monitoring put in place.
Confrontation with manager. Suspended and disciplinary
proceedings. Dismissed on health grounds.
• Comparators – approaches contrasted
• IT Broad - a comparator who had a similar
sickness record in respect of, i.e. a complicated
broken bone or other surgical problem, would not
have been subjected to the same treatment.
• EAT Narrow -having a similar sickness absence
record, would have been a person who had
recently been moved to a different post and whose
past behaviour and performance had caused
concern
Court of Appeal
• Upheld IT broad approach.
• Warned - dangers in attaching too much importance to
constructing a hypothetical comparator and to less
favourable treatment as a separate issue. If a claimant was
dismissed on the ground of disability, then it is likely that
he was treated less favourably than a hypothetical
comparator not having the particular disability would have
been treated in the same relevant circumstances. The
finding of the reason for the dismissal supplies the answer
to the question whether he received less favourable
treatment.
• Eagle Place Services Ltd v Rudd [2010] IRLR 486 EAT
• Dismissed solicitor who had detached retinas in both eyes,
which required adjustments to the amount of time he spent
in the office and his working conditions
• E/er ran the “B*** defence” - a hypothetical non-disabled
comparator would have been treated no differently since,
in large law firms, it was normal to manage dismissals by
summarily dismissing
• Q for EAT was the extent to which the employers
unreasonable behaviour was relevant to whether they had
unlawfully discriminated.
EAT held
• It is not open to an employer to say that it has not
discriminated against a claimant because it would
have behaved unreasonably in dismissing a
comparator. It is one thing to find, as in Bahl v
Law Society, that a named individual has behaved
unreasonably to both the claimant and named
comparators; it is quite another to find that a
corporate entity would behave unreasonably to a
hypothetical comparator when it had no good
reason to do so.
Associative Discrimination
• EBR Attridge Law v Coleman (No.2) [2010]
IRLR 10 EAT
• DDA can be construed, as required by the ECJ, so
as to prohibit direct discrimination and harassment
against an employee on grounds that they care for
a disabled person, even though the DDA in terms
protects only those who are disabled themselves.
(does not extend to other DDA strands)
Duty to make reasonable
adjustments
• Secretary of State for Work and Pensions v Alam [2010]
IRLR 283 EAT.
• Did the employer know both that the employee was
disabled and that his disability was liable to affect him in
the manner set out in the legislation?
• If "no", ought the employer to have known?
• If the employer could not reasonably have been expected
to be aware of the relevant effect, no duty to make
reasonable adjustments arises because the reasonableness
of his ignorance would make it unreasonable to impose on
him the duty to adjust.
Duty to make reasonable
adjustments
• Chief Constable of South Yorkshire Police v Jelic[2010]
IRLR 744 EAT
• J chronic anxiety syndrome – accepted disabled
• Moved to desk job with little face to face contact with
public
• Changes made expected to deal directly with incidents and
with members of the public who attended the police
station, and to conduct investigations relating to missing
from home enquiries
• Medical advice – unable to do this. Retired on medical
grounds. RA not explored.
Decision
• IT found that the employer was liable for
failing to make reasonable adjustments.
Would have been a reasonable adjustment
to swap the jobs being undertaken by the
claimant and another police officer
• Police a disciplined service so other PC
could have been ordered to move.
• EAT agrees – edge of reasonableness?
Injury to feelings awards
• Da'Bell v National Society for the Prevention of
Cruelty to Children [2010] IRLR 19 EAT
• EAT has formally up-rated the bands by 20% to
take account of inflation. The higher band for the
most serious cases is now from £18,000 to
£30,000 (previously up to £25,000 maximum); the
middle band is from £6,000 to £18,000
(previously up to £15,000) and the lower band is
now up to £6,000 (formerly £5,000).