Transcript Slide 1

Resetting the Boundaries:
Developments in Disability
Discrimination
Presented by
Mark Mansell, Sarah Henchoz and Caroline Overton
`
Thursday, 20 November 2008
Introduction
 Where are we now?
 Disability discrimination by association
 The new test of disability-related discrimination
 The duty to make reasonable adjustments
 Discrimination in pensions schemes
 The burden of proof and remedies
 Future developments and essentials in practice
Disability discrimination by association
Discrimination by association
 Extended scope of disability discrimination:
 Coleman v Attridge Law
 Discrimination against a person on grounds of the
disability of another person with whom they are
“associated” (e.g. parent and child)
 Wording of Disability Discrimination Act 1995
(DDA) is limited to protection of disabled persons
on grounds of their disability
Discrimination by association
 European law protects against associative
discrimination
 Purposive interpretation of DDA required in
Coleman v Attridge Law
 Harassment and less favourable treatment only – no
effect on the duty to make reasonable adjustments
 Impact on carers
 Supplements the extended right to request flexible
working
The new test of disability-related discrimination
Disability-related discrimination
 Less blatant than direct discrimination
 Less favourable treatment for a reason which relates
to a person’s disability
 Example:
 rejection of job applicant due to slow typing speed
rather than on grounds of their arthritic disability
 Justification defence (unlike direct discrimination)
Disability-related discrimination
 Does disability have to be a motivating factor?
 Old test:
 No (Clark v Novacold and Heinz v Kenrick)
 Example:
 irrelevant whether the employer is aware
that job applicant’s typing speed is due to
arthritis disability
Disability-related discrimination
 New test:
 Yes (Lewisham v Malcolm)
 Example:
 Rejection of job applicant due to typing test result
- no discrimination if employer is unaware of
employee’s disability
 Disability must play a part in the employer’s
decision-making process otherwise treatment does
not “relate” to disability
Disability-related discrimination
 Who is the correct comparator?
 Old test:
 a disabled or non-disabled person to whom the
disability-related reason does NOT apply (Clark v
Novacold)
 Example:
 disabled job applicant rejected due to slow typing
speed – comparator is a job applicant who does
not have a slow typing speed
Disability-related discrimination
 New test:
 a non-disabled person to whom the underlying
reason for the treatment DOES apply
(Lewisham v Malcolm)
 Example:
 disabled job applicant rejected due to slow
typing speed – comparator is a job applicant
who also has a slow typing speed for a nondisability-related reason
Disability-related discrimination
 Under Malcolm test most employees won’t be able to
show any difference in treatment of the comparator
 In practice:
 claimants’ focus will shift to the duty to make
reasonable adjustments and harassment
 Unclear whether Malcolm can be relied upon as it
was a housing case and not an employment decision
The duty to make reasonable adjustments
The duty to make reasonable adjustments (RAs)

“Where –
a) a provision, criterion or practice applied by or
on behalf of an employer, or
b) any physical feature of premises occupied by
the employer,
places the disabled person concerned at a substantial
disadvantage in comparison with persons who are not
disabled, it is the duty of the employer to take such steps as it
is reasonable, in all the circumstances of the case, for him to
have to take in order to prevent the provision, criterion or
practice, or feature, having that effect.”
Butterworths Employment Law Handbook – 16 Edition – Disability Discrimination Act 1995, s 4A (pags 677-678)
Failure to comply with the duty to make RAs
 No justification defence:
 focus on “reasonableness”
 Failure to make RAs can be a breach of mutual trust
and confidence: constructive dismissal
 No justification for disability-related discrimination if
RAs could have been made (unless discrimination
justified regardless of RAs)
Examples of RAs
 Non-exhaustive list of examples in Disability
Discrimination Act 1995 (DDA) e.g. adjustments to
premises or equipment, re-allocation of duties, new
role, hours, place of work, etc.
 Further recommendations in Disability Rights
Commission Code of Practice (DRC Code)
 Caselaw
Scope of the duty to make RAs
 Is there a duty to consider and consult with
employees on RAs or just a duty to make RAs?
(Mid-Staffordshire NHS Trust v Cambridge and
Tarbuck v Sainsburys)
 Majority view:
 only a duty to make RAs
 In practice:
 always consider RAs and consult with employees
Special cases: trial periods
 Trial periods/investigations: are they RAs?
 EAT had “considerable difficulty” with this approach
(Environment Agency v Rowan)
 Each case to be decided on its own facts
 In practice:
 trial periods are useful because they can
establish whether adjustments are reasonable
and effective
Special cases: sick pay
 Extension of sick pay when contractual entitlement
has ended? (Nottinghamshire CC v Meikle)
 Very limited circumstances e.g. where absence is
caused by employer’s failure to make RAs at work
(O’Hanlon v HMRC and EA Gibson Shipbrokers v
Staples)
 In practice:
 don’t dismiss the possibility of continued
payment and always consider “reasonableness”
Knowledge of disability and RAs
 Duty only applies if employer knows or could
reasonably be expected to know of
employee/applicant’s disability
 Knowledge can be constructive (Hartman v South
East Mental Health Community Care and DWP v
Hall)
 Be careful with occupational health forms and other
health service providers (e.g. counselling services)
Discrimination in pension schemes
How it works
 Statutory protection extends to pensions
 Non-discrimination rule put into scheme rules
 All other provisions read in the light of rule
 Trustees/managers on the hook as well as the
employer
 GPPs would be covered by general employment
prohibition on discrimination
Putting it into practice
 Applies directly to pensions since October 2004
 Excluding an employee or restricting benefits
because of a disability may be direct discrimination
 Justification on costs-grounds falls away
 Reasonable adjustments apply
Restricting access to a scheme
 Conditions of membership – e.g. satisfactory
medical examination
 Effect of any disability
 Snow – learning disabilities
 Employer’s duty of care
Restrictions within the benefit structure
 Ill-health early retirement
 Death in service benefits
Reasonable adjustments for pension schemes
 What is reasonable?
 scheme booklets, benefit statements, websites,
presentations, communications, adequate
training
 Trustee processes
 MNT election procedure, trustee papers, access
to meetings
Pension tips
 Review scheme rules
 Employer’s duty to inform trustees
 Trustees to ask for relevant information
 Know your members and their needs
 Adequate training
 Communication
The burden of proof and remedies
Burden of proof and RAs
 First decision on burden of proof in RAs case
 Claimant must show that adjustment would be
reasonable and would eliminate/reduce the
substantial disadvantage
 Burden shifts to employer to establish that proposed
adjustment is not reasonable or that it would not
eliminate/reduce the disadvantage (Project
Management Institute v Latif)
Remedies
 Declaration
 Compensation (unlimited)
 injury to feelings
 aggravated damages
 Recommendation to take reasonable action
Future developments and essentials in practice
Future developments
 Discrimination Law Review and Single Equality Bill
 Do the duty to make RAs and disability-related
discrimination cover the same ground as indirect
discrimination?
 Government is reconsidering the need for separate
claim of indirect discrimination in DDA postLewisham v Malcolm
Essentials in practice
 Knowledge:
 actual or constructive
 Assessment:
 avoid assumptions and assess employee’s abilities
and job requirements on an individual basis when
considering RAs
Essentials in practice
 Consultation:
 try to agree RAs before they are made
 Monitoring:
 keep an eye on how things work out in practice
 Document management:
 ensure your paper trail backs up your decisions
Questions?
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