22 March 2019 - Article
The Employment Appeal Tribunal has confirmed that a recent change in approach to disability discrimination claims, applied in the property law context, should also be applied in employment cases. The result is, that on the face of it, workers will now find it harder to establish that they have suffered disability discrimination. However, not all is as it seems and employers should not become complacent about how they treat disabled staff.
Workers might have expected to find it more difficult to establish that their employers have discriminated against them on grounds of disability since a House of Lords decision last Summer (Malcolm v London Borough of Lewisham). That case did not concern employment, but rather the situation of a disabled tenant who had sublet his property unlawfully.
The Employment Appeal Tribunal (EAT) has now made it clear, in the case of Child Support Agency v Truman, that the principles of the Malcolm judgment should be followed in employment cases, unless and until the Government changes the law.
However, employers should be very cautious before concluding that this means that they can treat disabled workers with less care. In particular, the case does nothing to water down the employer’s duty to make reasonable adjustments for disabled staff.
The Malcolm case centred on the issue of who disabled persons should be compared against when determining whether they have been treated less favourably. Mr Malcolm argued that he had sublet his property unlawfully because he had been behaving irrationally as a result of his schizophrenia (a disability). He also argued that repossessing his property because of this unlawful act was unlawful disability discrimination. He relied on well-established case law (Clark v Novacold) that suggested he should be compared against a non-disabled person who had not sublet unlawfully. Such a person would not have been repossessed, so (he argued) he had been treated less favourably and therefore discriminated against. The House of Lords disagreed. It said he should be compared against a non-disabled person who had sublet unlawfully (this being the reason for the treatment). Such a person would also have been repossessed, so Mr Malcolm had suffered no less favourable treatment.
In an employment context, the change in approach has significant ramifications. Take the example of dealing with a disabled person on long-term sickness absence. When you are assessing whether dismissing such a person would be less favourable treatment (and therefore unlawful under the Disability Discrimination Act unless the decision can be objectively justified) should you compare them to a non-disabled person who is not on long-term sick leave at all, or to a non-disabled person with the same amount of sick leave? The Clark case said that the first approach was correct (making it easy to show less favourable treatment, thereby placing the focus of cases on justification), but the Malcolm case has held that it is the second approach that should be used (thereby making it harder to establish less favourable treatment, and seemingly leaving employers in a position where they are not required to justify their decision under the Disability Discrimination Act).
The facts of Child Support Agency v Truman illustrate the practical impact on an employee. Mrs Truman had serious lower back problems and there was no dispute that she was disabled. She claimed (amongst other things) that she was less favourably treated by being put under pressure to apply for ill health retirement as a result of her not being able to work in an office. The Employment Tribunal said that this did amount to less favourable treatment as Mrs Truman ought to be compared to someone who could work in an office – such a person would not have been put under this pressure. The EAT disagreed, saying that in light of Malcolm, the correct approach was to compare Mrs Truman with someone who was unable to work in an office. However the EAT added that, as the implications of this were not clear-cut, it would send that part of the case back to the Tribunal to reconsider.
The note of caution for employers arises in relation to a second element of Mrs Truman’s claim: the matter of reasonable adjustments. Mrs Truman worked at home for a period after having had surgery. The Tribunal found that the employer had failed to make reasonable adjustments, as it had not provided her with a height adjustable desk and suitable chair in a timely fashion (it took over a year from the date on which she first requested it for a suitable desk to arrive at her home). It also failed in this duty by withdrawing the home working facility without apparently considering whether its new policy of not permitting home working ought to be adjusted in Mrs Truman’s case. Both failures meant that Mrs Truman was successful in part of her claim under the Disability Discrimination Act. This part was not appealed, and the EAT had nothing critical to say about it. The approach the Tribunal took to this part of Mrs Truman’s case was completely unaffected by the Malcolm decision.
Employers must not therefore rush to conclude that the EAT’s confirmation that Tribunals should, for the time being, follow the Malcolm decision means that they can be more relaxed in the way they deal with disabled workers. The duty to make reasonable adjustments arises in a very high proportion of cases involving disabled staff. The Child Support Agency’s decision to impose a ‘no home working’ policy, without considering the impact on Mrs Truman as a disabled person, is a very good example of how a large and well resourced employer can still be caught out by the extent of its duties under the Disability Discrimination Act.