The tide is turning in disability discrimination law

The Equality Act 2010 introduced section 15 disability discrimination to reverse the effect of Lewisham v Malcolm [2008] UKHL 43, which, although a housing case, drove a coach and horses through the Disability Discrimination Act 1995, as amended. Employers could justify any discriminatory treatment provided they could show the treatment was a proportionate means of achieving a legitimate aim. The provision was deliberately loose but could be tempered by a justification defence.

Section 15 is an entirely new provision which goes much further in disability-related discrimination. In the last two years, more decisions have come through the courts around this. Previously, most disability cases were pleaded under sections 20 and 21 of the 2010 Act as failures in the duty to make reasonable adjustments.

Section 15 discrimination

Disability discrimination claims are increasing in the employment tribunals while the overall trend in claims is downward. Section 15 was intended to be a wide provision, to catch discrimination that could not be captured by direct, indirect, and other forms of discrimination, and which is peculiar to disability. Attempts to narrow the provision have largely been resisted or reversed, making it easier to bring disability claims. For employers, it means there are more ways to fall foul of the law.

Last May, Risby v London Borough of Waltham Forest UKEAT/0318/15/DM established there is no requirement under section 15 for there to be a direct connection between the disability and the unfavourable treatment: any connection can suffice. This is not the chain of causation test in personal injury claims. Risby was about a paraplegic employee who in a fit of indignation made a racial slur about his inability to access a workshop in his wheelchair. He was dismissed. The tribunal held there was an indirect connection between his unacceptable outburst and his disability. Section 15 was therefore triggered and the dismissal was held to be discriminatory.

In September, Buchanan v The Commissioner of Police of the Met UKEAT/0112/16/RN concerned the application of a performance procedure that made no direct provisions for disability. Following a lengthy absence, Mr Buchanan was subjected to a procedure which requires compliance with return to work notices that he could not meet because of disability.

He suffered anxiety because of the process and complained to the tribunal that the procedural steps were unfavourable treatment amounting to section 15 discrimination. The Employment Appeal Tribunal agreed: the question was whether the steps applied to a disabled employee constituted unfavourable treatment which could not be justified.

Liberal application

While not a section 15 case, Carreras v United First Partners Research UKEAT/0266/15/RN demonstrates the prevailing trend in disability discrimination law: the tendency towards a more liberal application of the law to achieve its purpose to level the playing field for employees with disabilities. This is largely being driven by Europe, which, since HK Danmark (Ring and Skouboe Werge) (Cases C-335/11 and C-337/11), has continued to issue decisions compatible with ensuring the full and effective participation in employment of people with disabilities.

In Carreras, the EAT held that an expectation that an employee would work late was a provision, criterion, or practice (PCP) that triggered the requirement for the employer to consider reasonable adjustments. The case was upheld on appeal. The EAT criticised the employment tribunal for adopting an overly technical approach as to what constituted a PCP, pointing out that a liberal approach was required to give effect to the purpose of the legislation. This appears to be the general direction around disability.

The tide is turning in favour of disabled employees and employers must be careful when making any decision which could be construed as unfavourable treatment (including dismissal) and when applying any sort of sanction to a disabled employee. Legal advice is a must. Advisers must be aware of the pitfalls and be prepared to advise on establishing objective justification for discrimination.

December 2016 will see the first Court of Appeal case on section 15, Williams v Trustees of Swansea University Assurance Scheme and another UKEAT/0415/14/DM, which concerns whether it was unfavourable treatment to calculate Mr Williams’s ill-health early retirement pension based on reduced hours worked because of an adjustment to hours and whether he should have been entitled to a benefit based on his full contractual salary. The courts have been notoriously reluctant to sanction reasonable adjustments to pay so the position is uncertain; however, the September 2016 decision of G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN might be evidence that that position is changing too.

Karen Jackson is the director of didlaw

@didlawkaren didlaw.com