Disability Discrimination – lessons to be learned from recent cases

During the last two years, a number of cases have been reported that provide greater insight on the management of disability issues and the defence of disability discrimination claims. In this article, we look at three such cases and the lessons to be learned for HR and management in the HE sector.

Ishola v Transport for London [2020] EWCA Civ 112 – Can a one-off act be a PCP?

If an employee is disabled and is placed at a substantial disadvantage by an provision, criterion or practice (PCP) applied by their employer in comparison to those who are not disabled, the employer has a statutory duty under the Equality Act 2010 to consider what reasonable adjustments are required to alleviate that disadvantage. PCP has no specific definition under the Equality Act, leaving the tribunals to determine how widely it can be interpreted.

In this case, Mr Ishola was a disabled person suffering from depression and migraines. He had raised a grievance against a colleague and, on being unhappy with the grievance outcome, made further complaints relating to harassment, victimisation and discrimination. He was off sick for over a year, until his employer dismissed him on the grounds of medical incapacity, at the time of which a number of his further grievances were still outstanding. He brought a wide variety of claims in the Employment Tribunal, which were substantially unsuccessful.

The particular element of Mr Ishola’s claim that made its way to the Court of Appeal in February 2020 was his contention that the decision to dismiss him amounted to a PCP of requiring him to return to work without concluding a proper and fair investigation into his grievances. The Court of Appeal disagreed and, whilst acknowledging that there may be circumstances in which  a one-off act can amount to a PCP, that phrase carries the connotation of a state of affairs with some form of a continuum. The Court distinguished between an decision that would have been applied in the future to similarly situated employees (so that the existence of a policy can be identified from that consistent approach) from a one-off decision in an individual case that has no sense of repetition about it.

The decision is of some comfort to employers facing challenges to specific grievance or disciplinary outcomes on a reasonable adjustments basis (or, indeed, indirect disability discrimination, which also requires the application of a PCP). However, care does need to be taken with rigid applications of HR policies in HE, given the Court’s observation that evidence that a decision is the result of a state of affairs, or the way in which things were generally done in practice, or the way in which things would be done in future, could give rise to a finding that a PCP has been applied.

Primaz v Carl Room Restaurants Ltd (t/a McDonald’s Restaurants Ltd) [2021] 7 WLUK 749 – assessing substantial impairment of day to day activities

A disability is defined in the Equality Act 2010 as a physical or mental impairment which has a long-term, substantial adverse effect on an individual’s ability to carry out day to day activities. In the next two cases, we consider two different elements of that definition and they can impact on the outcome of disability discrimination claims.

Firstly, Ms Primaz’s claim against her employer, the EAT was required to review an employment tribunal’s judgment that Ms Primaz was disabled, and in particular whether her medical conditions could be said to have the necessary “substantial adverse effect”.

Ms Primaz suffered from epilepsy and vitiligo and avoided coffee, alcohol, cosmetics, cleaning products, sunlight, and all medications, believing that they would adversely trigger her conditions. However, there was no medical evidence to support her beliefs. In fact, she even refused medication prescribed by her doctors, contrary to their strong recommendations. The EAT decided that the tribunal had wrongly focussed on the adverse effects of Ms Primaz’s coping mechanisms and therefore come to the wrong conclusion that her impairments had a substantial adverse effect on her day-to-day activities. Instead, the tribunal should asked whether the conditions themselves had a substantial adverse effect on Ms Primaz’s day-to-day activities. This was an objective question which could not be determined by her subjective beliefs.

Whilst an unusual case on the facts, this decision by the EAT is a useful reminder of the importance of objectively assessing the impact of physical impairments in disability claims. Universities often have the benefit of their own Occupational Health services (the more fortunate also having access to external OH services provided by a local NHS teaching hospital). Where disability issues arise, properly briefed OH investigations at an early stage can be very helpful in producing objective evidence to support that assessment.

Sullivan v Bury Street Capital [2021] EWCA Civ 1694 – When is an impairment “long-term”

Finally, the recent decision in Mr Sullivan’s claim focusses on another aspect of the disability definition, whether it can said to be long-term.

There can sometimes be a tendency (particularly on the part of claimant representatives) to apply too broad an interpretation to the concept of long-term, and simply assuming that any illness which has lasted for at least a year, or appears on the available medical evidence to be likely to last at least a year, will therefore be “long term” for the purposes of identifying whether it amounts to a disability for Equality Act purposes. This decision from the Court of Appeal clarifies that it not the condition itself that should be considered but whether the adverse impact of that condition has been, or is likely to be, long term.

Mr Sullivan’s employer had been concerned with his timekeeping and attitude from soon after he was hired. After 4 years’ employment he began experiencing paranoid delusions that he was being tracked and monitored by a Russian gang. The delusions affected his work, in particular his timekeeping and attendance. However, after approximately 4 months, his condition improved and he reached a position where, while he still having the delusion that the gang was following him, he could manage his condition without letting it affect his work.

Despite the improvement in the Claimant’s condition, his employer continued to have concerns about his timekeeping and attitude. These concerns were raised regularly with the Claimant at reviews from about 9 months after his condition stabilised for a period of roughly 3 years, until he was finally dismissed on the grounds of capability. Mr Sullivan then brought a disability discrimination claim.

The Court of Appeal, upholding the tribunal’s decision that Mr Sullivan was not disabled,  found that his delusional beliefs only had a substantial adverse effect on his ability to carry out normal day to day activities during two periods, between May to September 2013 and then from around April to June 2017, until his dismissal.  The mental impairment itself persisted from 2013 to 2017, but that did not make his condition a disability given the absence of a substantial adverse impact outside of those two time periods.

Like the Primaz case, this decision turns on some unusual facts but helps to emphasise the importance of good objective evidence (and the value of early engagement with OH services) about the impact of an employee’s illness, in this case regarding the impact of mental, rather than physical impairments.

For specialist legal advice on the above, please contact Bob Fahy in VWV’s Higher Education team on 07500 686 163 or bfahy@vwv.co.uk.

To be kept up to date on legal, regulatory and governance issues, please register for VWV’s dedicated HE portal OnStream at www.vwv.co.uk/he-onstream.

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