Employment tribunal statistics for the second quarter of 2019 show that disability discrimination claims received the largest average awards, compared with other forms of discrimination. The average award for disability discrimination in 2018/2019 was £28,000. Clearly, this is an important cause of action. It is also true to say that it is a complicated field, the legal ramifications of which are too little understood by employers and employees.

Over the past few months, there has been a flurry of appellate cases dealing with disability discrimination. This newsletter attempts to summarise some of the main cases, and to put them into the statutory framework.

The definition of ‘disabled’ is crucial to this area. The remedies are available only to those who can satisfy the definition set out in the Equality Act 2010 (‘the 2010 Act’). 

One aspect of that definition is that the individual must have an impairment which ‘has a substantial and long-term adverse effect’ on his or her ‘ability to carry out normal day to day activities’ (s6 of the 2010 Act). 

Long-term?

The question of how the phrase ‘long-term’ ought to be interpreted is tucked away in a schedule (Sch 1, para 2 of the 2010 Act). This states that it will be long-term if it is ‘likely to last for at least 12 months’. That poses the next question: what does ‘likely’ mean in this context?

In Nissa v Waverly Education Foundation (UKEAT/0135/18) the claimant was employed by the respondent as a science teacher. She resigned on 31 August 2016 and claimed  she had suffered disability discrimination. It was her case that, since December 2015, she had suffered from a physical impairment, ultimately diagnosed as fibromyalgia, together with mental distress. She claimed these impairments caused her to suffer a substantial and long-term adverse effect on her ability to carry out normal day-to-day activities. Considering whether she was disabled for the purposes of the Equality Act 2010, the employment tribunal first asked whether, on the evidence available within the material period (16 December 2015 to 31 August 2016) it could be said that the effects of the Claimant's impairment/s were likely to last more than 12 months. Noting that none of the her advisers had considered her condition long-term, that a diagnosis of "fibromyalgia" was not made until 12 August 2016 and was subject to the caveat that her symptoms might slowly improve as she was no longer in the respondent's employment, the tribunal concluded it could not be said to have been likely that the effects would be long-term. The ET also held that, even if the effects of her impairments had been long-term, she had failed to establish that they had given rise to the relevant substantial effect. The claimant appealed against both findings. 

The EAT allowed the appeal. In determining whether the effect of the Claimant's impairments was "long-term", the tribunal had focused on the question of diagnosis rather than the effects of the impairments. In addition it had adopted a narrow approach, rather than looking at the reality of risk - whether it could well happen - on a broad view of the evidence available.The government Guidance on Matters to be taken into Account in Determining Questions relating to the Definition of Disability ("the Guidance"), states (see paragraph C3) that "'likely' should be interpreted as meaning that it could well happen" rather than it is more probable than not that it will happen (see SCA Packaging v Boyle [2009] ICR 1056). The EAT also held, the tribunal’s decision on "substantial adverse effect" could not stand; it failed to take into account relevant evidence and that rendered its conclusion unsafe. The case was remitted to a different tribunal for re-hearing.

[The Guidance is to be found at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/570382/Equality_Act_2010-disability_definition.pdf]

Corrective measures

If an impairment would be likely to have a substantial adverse effect but for the fact that measures are being taken to correct it, it is to be treated as having that effect (Sch 1 para 5 of the 2010 Act). ‘Measures’ include medical treatment and the use of a prosthesis or other aid. So for example, if an illness is kept under control by medication, the effect of the medication must be disregarded, just for the purposes of deciding whether a person is disabled. There is an exception in the case of sight impairments which can be corrected by spectacles or contact lenses etc — their effect must be taken into account in deciding whether the wearer is disabled. 

In Mart v Assessment Services Ltd (UKEATS/0032/18), the claimant had diplopia (double vision), and brought an indirect discrimination claim based on her treatment because of it. She also suffered from facial difference, depression and anxiety but those matters were expressly not pleaded. The ET found that she was not disabled, as her diplopia had been corrected by contact lenses. She appealed on the basis that the contact lenses disfigured her by blacking out her eye, and restricting her peripheral vision. The EAT dismissed the appeal. Although the correction came ‘at a cost’, it did correct the impairment. The EAT did comment that they might have come to a different conclusion if she had included in her ET1 an allegation that her facial disfigurement and/or her depression were impairments which rendered her disabled. 

Although the result was an unfortunate one for Ms Mart, the case does serve as a useful reminder that beneficial treatment and correction are generally disregarded when determining that an individual is disabled. For example, the point will not be whether he or she is disabled when they take their medication, but whether they are they disabled without their medication. 

Normal day-to-day activities

The phrase ‘normal day-to-day activities’ in the definition of disability was considered by the Court of Appeal in Chief Constable of Norfolk v Coffey [2019] EWCA Civ 1061. Ms Coffey was a police officer in the Wiltshire force. She suffered from a degree of hearing loss which had not caused her any problems in doing her job. She did not fall within the definition of disability at that point, as she was capable of carrying out her ‘normal day-to-day activities. She then applied for a transfer to the Norfolk police force. It was refused, the medical adviser stating that she was ‘just outside the standards for recruitment, strictly speaking’.

She brought a claim for disability discrimination, on the basis that she had been discriminated against because of a perceived disability. (Perception discrimination is where A treats B unfavourably because A thinks that B has a particular protected characteristic even though they do not). 

Her claim succeeded before the ET and again before the EAT. The EAT said that the phrase ‘normal day-to-day activities’ should b given ‘an interpretation which encompasses the activities which are relevant to participation in professional life’. Hence, the belief of the Norfolk police that her hearing loss would, currently or in the future, render her unable to perform the duties of a front-line police officer was a perception that it would have an effect on her ability to carry out normal day-to-day activities. The Court of Appeal agreed. It also held that to refuse employment because of a perception of a risk of future inability to carry out the duties of the job applied for constituted direct discrimination.

“Something arising in consequence of the disability”

One of the important differences between protection against disability discrimination and the provisions relating to other forms of discrimination is the ability for the disabled person to claim that the unfavourable treatment complained of resulted from ‘something arising in consequence’ of the disability. In Baldeh v Churches Housing Association (UKEAT/0290/18) Mrs Baldeh was dismissed at the end of her six-month probationary period after concerns about her performance and behaviour. She was disabled with depression, and claimed her dismissal was contrary to s 15 of the 2010 Act since it was because of something arising from her disability.The ET found that there were other reasons for her dismissal. 

She appealed to the EAT and was successful. The EAT found that there was some evidence that her depression caused the behaviour which had led to her dismissal. The fact that there may have been other causes as well was no answer to the claim. It was sufficient  for the ‘something arising in consequence’ of the  disability to have a ‘significant influence’ on the unfavourable treatment.

Actual or constructive knowledge

The state of the employer’s knowledge was also in issue in Baldeh. Liability under s 15 of the 2010 Act is excluded if the employer ‘did not know and could not reasonably be expected to know’ that the claimant had the disability. The ET found that there was was no actual or constructive knowledge on the part of the employer of Mrs Baldeh’s disability. The EAT pointed out that she had mentioned her mental health at the appeal hearing and the rejection of the appeal was an element in the unfavourable treatment of which she complained. Although they may not have known of her disability at the time of the dismissal, they could have acquired actual or constructive knowledge before they rejected her appeal.

John Sprack

November 2019