+44 (0)20 7797 8600

MENU

 

DANIEL NORTHALL ROUNDS UP DEVELOPMENTS IN DISABILITY DISCRIMINATION FROM THE FIRST HALF OF 2014

Daniel Northall  

Definition of disability

Z v A Government Department [2014] IRLR 563

The facts

Ms Z was employed in Ireland as a teacher on terms determined by an Irish government department. Those terms entitled Ms Z to paid periods of maternity and adoption leave.

Ms Z had a rare condition which meant that, although fertile, she did not have a uterus capable of bearing a child through pregnancy. In 2010 she had a child via a surrogate in California. The child was the genetic offspring of Ms Z and her partner, having been created by their respective gametes and implanted into the surrogate.

Since Ms Z had not undergone a period of pregnancy, she could not satisfy the requirements under domestic legislation for taking maternity leave. Nor did she qualify for adoption leave as she had not adopted the child of the surrogate.

Aside from allegations of sex discrimination, Ms Z alleged that the refusal to provide paid leave to a person who was unable to bear a child amounted to disability discrimination under the Equal Treatment Framework Directive 2000/78.

The judgment

Directive 2000/78 does not define disability. However, the United Nations Convention on the Rights of Persons with Disabilities, which contains various descriptions of disability as a concept, had been approved on behalf of the European Community.

The primacy of international agreements concluded by the European Union over instruments of secondary law means that those instruments must as far as possible be interpreted in a manner which is consistent with those agreements.

Consequently, disability within the meaning of the Directive must be taken to mean that which is set out in the UN Convention; namely "a limitation which results in particular from long-term physical, mental or psychological impairments which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.

The inability to have a child by conventional means was not a hindrance upon Ms Z’s participation in professional life and so she was not disabled for the purpose of the Directive.

Comment

In an earlier update, I commented on the divergence between the domestic and European definitions of disability brought about by the decision of the CJEU in HK Danmark [2013] IRLR 571. Section 6 of the Equality Act 2010 is focused upon the impact an impairment has on normal day to day activities. The Directive, as now interpreted in light of the UN Convention, focuses instead upon the impact on an individual’s professional life. As we know, work activities may amount to normal day to day activities and vice-versa, but the two concepts are not synonymous.

Following its decision in Z, the gulf between the domestic and European definitions of disability is arguably now wider. In finding that Ms Z was not a disabled person, the CJEU considered only the effect of Ms Z’s condition on her ability to participate in professional life. All other effects were disregarded.

Had the facts of Z been applied to Section 6 of the Equality Act the outcome would probably have been the same. Childbirth may be a normal activity but it could not be described as a day to day activity. Nonetheless, one can conceive of adverse effects on work activities which do not amount to adverse effects on normal day to day activities.

Another question which arises is how "professional life” is to be defined. Is it by reference to the individual’s particular job, or to a broader notion of "professional life” in society as a whole? For example, if a particular employee has an impairment which meant he could not drive, but his job did not involve driving and he could walk to work without difficulty, would this be a hindrance on his full and effective participation in professional life?

There are presently no domestic authorities which seek to analyse the differences, if any, between Directive 2000/78 and Section 6 of the Equality Act 2010 in their reliance on "professional life” on the one hand and "normal day to day activities” on the other, but it is surely only a matter of time.

Kaltoft v the Municipality of Billund Case C-354/13

The facts

Mr Kaltoft was employed as a childminder with a Local Authority in Denmark. He had undertaken this role for some 15 years and had been obese throughout his period of employment. His attempts to lose weight, including some sponsored by his employer, had been unsuccessful. His employment was terminated on the grounds of performance when his employer alleged he was unable to fulfil many aspects of his role, due to his size.

The Judgment

There has been no judgment from the CJEU as of yet. However, the Advocate-General’s Opinion published on 17 July 2014 indicated that obesity may qualify as a disability where obesity has reached a degree which "plainly hinders full participation in professional life on an equal footing with other employees due to the physical and/ or psychological limitations that it entails”.

Comment

The opinion of the Advocate-General has created a tidal wave of comment and criticism from parties fearful that obese workers will now be protected under discrimination legislation.

The response has been a complete overreaction. The AG’s Opinion effectively amounts to the proposition that an obese person will be a disabled person if they meet the definition of disability. In that sense, it is unremarkable.

What really drives the criticism is the unspoken belief that obese people are to blame for being obese and are therefore less deserving of support and assistance in the workplace. Firstly, that may not be true. Secondly, and more fundamentally, the discrimination provisions, both domestically and at European level, do not require an analysis of the blameworthiness of an individual having a particular impairment. So a person who was severely injured while drink driving may be just as much a disabled person as someone who has suffered a disabling condition from birth.

The Equality Act stipulates those conditions which automatically disqualify as a disability (visual impairments which are corrected by spectacles is the most everyday example). Obesity is not a disqualified condition and there is no other basis for arguing that impairments caused by obesity should be excluded from protection under the Act.

The legislation is concerned principally with effect, not cause. If obesity results in impairments causing a substantial adverse effect on normal day to day activities which is long term, that person will be disabled for the purposes of the Act.

Hutchison 3G UK Ltd v Edwards UKEAT/0467/13/DM

The facts

Mr Edwards was employed as a Sales Associate at one of Three’s stores in Newcastle. He suffered from Poland syndrome: he had been born with his entire major left pectoral chest muscle missing, along with the sternal head on the left side of his chest and two ribs. It resulted in his having a noticeable asymmetry in the appearance of his chest.

Mr Edwards complained that he was caused embarrassment as a result of having to wear a new polo shirt at work. He also alleged that his manager then publically harassed him. The matter came before an employment tribunal to determine whether he was a disabled person within the meaning of s.6 of the Equality Act 2010.

The Tribunal found that the condition resulted in a severe disfigurement which of itself qualified Mr Edwards as a disabled person by virtue of Schedule 1 to the Act. The Tribunal also went on to find that the condition amounted to a physical impairment: it had a substantial adverse effect on normal day to day activities which was long term. The employer appealed both findings.

The judgment

In assessing the severity of a disfigurement, the Tribunal is entitled to take into account as a relevant factor the impact the disfigurement has on the Claimant; for example, the steps he takes to disguise the disfigurement from others.

The Tribunal had before it a description of the disfigurement from the Claimant himself and in a GP’s report. The Tribunal was not obliged to carry out its own visual examination of the Claimant or to inspect photographic evidence. It must be right that Tribunals display a degree of sensitivity in assessing the severity of disfigurement in cases where the Claimant has gone to lengths to conceal it.

The Tribunal’s finding that the disfigurement amounted to a physical impairment which had a substantial adverse effect on normal day to day activities was based on permissible findings of fact and it had due regard to the Claimant’s ability to undertake normal day to day activities.

Comment

This is a comparatively rare case of a deemed disability by virtue of a severe disfigurement. The decision is important because it confirms that the severity of a disfigurement is not simply a product of its physical appearance. The Tribunal is entitled to have regard to the effect the disfigurement has upon a Claimant’s daily life.

The judgment also suggests that the Tribunal’s assessment of the appearance of the disfigurement is not conclusive, nor even important, provided the nature of the disfigurement is adequately evidenced from other sources.

Of course, a disfigurement’s appearance is still significant in determining its severity. Mr Edwards’ daily life was affected only because of his perception of his chest’s appearance and the response it would provoke in others. His perception was reasonable based on his past experiences.

 
Associative discrimination

Hainsworth v Ministry of Defence [2014] EWCA Civ 763

The facts

Ms Hainsworth was employed by the MoD as an Inclusion Support Development Teacher. She served as a civilian employee attached to the British armed forces and was based within the Paderborn Garrison in Germany. Her daughter had Down’s syndrome and was a disabled person for the purpose of s.6 of the Equality Act but she was not herself disabled.

Through a third party agency, the MoD provided education and training for the children of servicemen and women and civilian personnel serving away from the United Kingdom. However, there was no provision for children with specialist needs. By reason of her disability, Ms Hainsworth’s daughter could not be schooled in Germany by the MoD.

Consequently, she submitted a formal request to be transferred back to the UK and this was rejected. She alleged that the failure to allow her to transfer to the UK amounted to a failure to make a reasonable adjustment.

It was conceded on her behalf that a literal interpretation of the Equality Act did not support her argument. Nonetheless, the Act should be read consistently with Article 5 of Directive 2000/78/EC which, it was argued, did require an accommodation to be made for those employees associated with disabled persons.

The judgment

Article 5 did not require the extension of the duty to make reasonable adjustments to employees who were associated with disabled persons. The "obvious and entire focus” of Article 5 was upon provisions to be made by an employer for his disabled employees. Nor did the decision of the CJEU in Coleman v Attridge Law [2008] IRLR 722provide any support for the argument. On the contrary, the Court in that case specifically remarked that Article 5 applied only to disabled people. No reference to the CJEU was required as the point was clear.

Comment

It is plain through a combined reading of Section 20 of the Equality Act and paragraph 5 of Schedule 8 to the Act that the duty to make adjustments extends only to disabled employees of the employer. Nonetheless, employers are frequently faced with employees who request some accommodation to be made to their working conditions due to their association with a disabled person. A typical example would be an employee who has a disabled child and requires additional time off to provide support or to attend medical appointments.

The judgment in Hainsworth puts the position beyond any doubt (if any existed at all). Provided the employee in this scenario is treated consistently with other employees, the Equality Act does not oblige an employer to provide any additional accommodation.

 
Case Management

In March of this year, the outgoing President of the Employment Tribunals issued Presidential Guidance on General Case Management.

The guidance can be found here:

http://www.justice.gov.uk/downloads/tribunals/employment/rules-legislation/presidential-guidance-general-case-management.pdf

The guidance contains a section on the issue of disability and at paragraph 11 it sets out a helpful and user-friendly description of the process of proving disability.

It gives an insight into a tribunal’s likely attitude to the evidence required to prove disability and so is an important reference in the event a dispute arises between the parties as to how disability should be evidenced.

The guidance confirms the trend away from obtaining formal expert medical evidence at the first stage of proving disability. Rather, a claimant will be expected to produce such medical evidence (such as GP records) as they already possess and disclose it to the respondent along with a statement of effect. It will then be for the respondent to decide whether disability is still disputed.

The proper case management of determining the issue if disability, including the evidence required and who should pay for it, was considered by the EAT in City Facilities Management (UK) Ltd v LingUKEAT/0396/13.

The facts

City Facilities Management provided on-site cleaning services to clients, including Asda. Mrs Ling was employed by City as an "Asda Ace Janitor”. She went off sick in February 2012 due to depression and anxiety and was dismissed on grounds of capability on 5 October 2012. She alleged that her dismissal amounted to disability discrimination.

At the case management stage, directions were given for Mrs Ling to disclose her GP records and to produce a statement of effect. The matter then came before the Employment Tribunal again to decide whether Mrs Ling was a disabled person within the meaning of the Act.

The Employment Judge declined to determine the issue on the basis that expert medical evidence was essential and was not before him. He adjourned the hearing and, in light of Mrs Ling’s lack of funds, ordered City to fund a joint medical report.

City appealed both the decision to refuse to decide the disability issue in the absence of expert medical evidence and the requirement that it fund a joint report.

The judgment

The Tribunal had erred in both respects.

In adjourning to require the parties to obtain expert medical evidence, the Employment Judge failed properly to consider the burden of proof. Had he done so, he would have realised that the burden was on the Claimant and she was content at the stage of the preliminary hearing to rely upon the GP records and her own witness evidence.

Further, in light of the 2005 amendment to the disability discrimination legislation (which removed the requirement that a mental impairment be clinically well recognised) and the guidance of the EAT inJ v DLA Piper UK LLP [2010] ICR 1052, the proper approach was to hear from the Claimant on the effects of the impairment and then, armed with that evidence, to consider whether those effects were evidence of an underlying impairment. There was a danger in considering "impairment” and "effect” as distinct from each other or that they needed to be determined sequentially.

As to the requirement for the Respondent to fund a joint report, the EAT did not accept that the overriding objective, of itself, gave the Tribunal power to require a respondent to fund jointly obtained expert medical evidence. The judge had failed to consider alternatives to requiring the Respondent to pay for a joint report, which included asking questions of the Claimant’s GP or allowing the Respondent to have its own report, an approach endorsed in De Keyser Ltd v Wilson [2001] IRLR 324.

Comment

Consistent with the Presidential Guidance, the EAT in Ling was clearly of the view that a claimant’s medical records, combined with a statement of effect, ought to be sufficient in most cases to enable a Tribunal to form a view on whether a claimant suffers from a disability.

Nor should tribunals assume that the existence of an impairment can only be addressed through expert medical evidence. The existence of an impairment is often obvious once the tribunal has made findings of fact as to its effect.


Posted: 04.08.2014 at 11:21
Tags:  On Employment
Share this page
Print page

Cookies help us deliver our services. By continuing to browse this website, you agree to our use of cookies. OK