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Posts Tagged ‘disability’

The Employment Appeal Tribunal has held that an obligation to make reasonable adjustments does not necessarily end when an employee goes on sick leave. The point made a difference to whether the employee had presented his claim to the Tribunal in time.

The employee in this case brought a claim for disability discrimination following a period of sick leave. He argued that his employer failed to make reasonable adjustments to take into account his disability and that, if  the employer had made reasonable adjustments, he would not have gone on sick leave in the first place, or  indeed later adjustments would have enabled him to return to work.

At first instance the judge said that any duty to make reasonable adjustments ended when he went off sick because he was “simply unable to be at work”.

The employee appealed and won.

The Employment Appeal Tribunal said that, in some cases, adjustments while on sick leave would not make any difference to the employee.  This tribunal, it said, should have decided whether it was the very failure to make the adjustments which kept the employee away from work.  

Case reference: Olenloa v North West London Hospitals NHS Trust

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The EAT has considered the definition of disability in giving judgment in a recent case.

As a result of an accident at home, the employee in this case was left suffering from concussion and went off sick. Five months after the accident his GP’s view was that he would make a full recovery and he expected some improvement within the following few months. His GP also hoped that there would be no need for any adjustments on his return to work.

The prognosis was, therefore, that he would fully recover within less than 12 months of the accident. The GP set out his prognosis in a medical report in which he also stated that the employee was disabled. However, it was apparent that this view was based on the nature of the employee’s symptoms as of the date of the report rather than based on the likely position over the ensuring 12 month period. Shortly after the date of the initial medical report the employee was dismissed.

As it happened the employee’s recovery was not as speedy as had been anticipated and 11 months after the accident his GP still considered him to be disabled. He brought a claim for disability discrimination, arguing that he was disabled at the time of his dismissal and that he had been unlawfully discriminated against by reason of his disability. An Employment Tribunal had earlier ruled that he was disabled at the time of dismissal and the employer appealed. On appeal, the Employment Appeal Tribunal said that the earlier tribunal had been wrong to conclude that he was disabled as it had failed to apply the legal test set out in the Disability Discrimination Act and to apply it as at the date of the dismissal.

The Disability Discrimination Act has been superseded by the Equality Act. However, the test remains the same, namely a person is disabled if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities. An impairment is regarded as being substantial if it has lasted or is likely to last at least 12 months.

The Employment Appeal Tribunal said that the question for the tribunal was whether the employee had established that he was disabled at the time when the alleged discrimination took place, i.e. at the time of his dismissal. It was, therefore, necessary for him to demonstrate that at the time of his dismissal the symptoms he was suffering from were as such as to have a substantial adverse effect on his day-to-day activities and that the likelihood was that they would last at that level for at least 12 months from the date of the accident.

The Employment Appeal Tribunal said that even if he was experiencing a substantial adverse effect on his day-to-day activities at the time of dismissal the GP’s view was that was not going to persist for very much longer and was certainly not going to persist for 12 months or more. Accordingly, it ruled that the employee was not a disabled person when he was dismissed.

The Employment Appeal Tribunal also said that it was for the employee to show that he was disabled and that the tribunal had been wrong to criticise the employer for not making further enquiries of the GP.

Case reference: S G Baker Ltd v Mr Garry Haggart.

Employers should bear in mind that GPs are not always aware of the legal definition of disability and even where they are it will ultimately be for a tribunal, not a GP, to decide whether a person is disabled or not. For this reason legal advice should be obtained where there is doubt as to whether a person is disabled.

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A person is disabled if “they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities”.

The Equality Act introduces a new protection by extending it to cover unfavourable treatment due to a factor connected with a disability for example a tendency to make spelling mistakes arising from dyslexia.

This type of discrimination is unlawful where the employer knows, or could reasonably be expected to know, that the person has a disability and it is likely to be difficult to justify discrimination in such cases.

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 I blame Simon Cowell, says ‘humiliated’ hopeful – TV & Radio, Media – The Independent. Britain’s Got Talent singer sues Simon Cowell Emma Amelia Pearl Czikai lodged a disability discrimination claim against the show’s creator and star, Simon Cowell, his production company Syco, and Freemantle Media. Ms Czikai suffers from cervical spine neuritis, which causes severe neck pain and headaches.

She claims that the producers knew about her condition, but discriminated against her and has accused the show and its judges of ‘exploitation, humiliation, degradation and barbarism’.

Obviously not underestimating her talent, Ms Czikai said she was seeking £300,000 for injured feelings, compensation of £1m and loss of earnings of £1.25m.

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In October 2010 the Equality Act will make it unlawful to ask job applicants about their health. The thinking behind this move is that employers are discriminating at application stage against applicants with mental health issues and other disabilities. 

I personally find this unhelpful because if interview panels cannot ask applicants about their disabilities how are reputable employers supposed to help applicants overcome them in the work environment!  Companies urged to review applicant health questionnaires – Telegraph. ELE will shortly produce a pre-employment application pro forma to assist ELE members with this process. We will notify members when it is issued.

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Recent case law involving a firm of solicitors established that employers must not discriminate against a worker for reasons that they have a disabled dependent. Yet another law firm is accused of similar abuse as a non-disabled typist named Teri McCue is attempting to bring a disability discrimination claim in an employment tribunal because “she was forced to sit alone because her employers were unhappy with the time she had needed to care for her son”. 

Ross Harper Solicitors have dismissed the claim as “simply preposterous”, saying they “bent over backwards” for Miss McCue and had often granted her time off at the last minute. More at this link

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The Government hase issued a Press Release stating that The Equality Act is set to go ahead in line with the planned October timetable. Employers can expect landmark provisions to protect disabled people from discrimination and efforts to narrow the gender pay gap. More details on the Government Equalities Office website.

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