Transcript Document
Centre:Forum THE PURSUIT OF HAPPINESS Mental health and employment law disability discrimination reasonable adjustments ill health dismissals useful resources employer liability arising from (MH) disability disability discrimination - Equality Act 2010 Health & Safety at Work Act 1974 personal injury liability for psychiatric injury in tort Protection from Harassment Act 1997 statutory definition of disability s.6 Equality Act 2010 impairment & substantial effect & long-term & normal day-to-day activities disability = functional impairment + barriers Ring v Dansk (CJEU) “persons with disabilities include those who have longterm physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others” greatest barriers for mental health @ work prejudice assumptions stereotypical views attitudes dangerous/difficult/unpredictable/unreliable forms of disability discrimination • section 13 direct – because of disability • s.15 discrimination arising in consequence of disability** • (s.19 indirect) • ss.20-21 reasonable adjustments duty** • s.26 harassment • s.27 victimisation (including post-termination) • s.111 instructing, causing, inducing discrimination • s.112 aiding discrimination Can the employee identify a PCP, physical feature or absence of an auxiliary aid which is causing disadvantage? Yes Does the employee have a disability? Yes No Are non-disabled colleagues unaffected? Yes Is there a substantial disadvantage to the employee? Yes Is there a prospect that the reasonable adjustments can alleviate the disadvantage? Yes No The reasonable adjustments duty does not arise The reasonable adjustments duty is not triggered No The reasonable adjustments duty requires a comparison No The reasonable adjustments duty is only triggered if the disadvantage is more than minor or trivial No The reasonable adjustments duty falls away if the adjustment has no prospect of alleviating the disadvantage. Is the adjustment reasonable (having regard to the reasonableness factors at para.6.28 of the Code (4.7.2))? No The adjustment may be declined Yes The adjustment must be made reasonable adjustments assessing the duty: 1. identify the PCP, physical feature or auxiliary aid 2. identify the substantial disadvantage 3. see if it affects non-disabled people. If it does not 4. make the adjustment but only (a) if it is reasonable and (b) if it has some prospect of alleviating the disadvantage Griffiths v Sec of State for Work & Pensions • • • • adjustment of sickness absence trigger points formal sickness absence proceedings comparator applied (incorrectly) inconsistent with European law Court of Appeal July 2015 – treat with caution! ill health dismissals Dundee City Council v Sharp [2011] 1. has the employer consulted with the employee? 2. has the employer carried out a reasonable investigation? 3. has the employer reached a reasonable view on whether it is reasonable to wait longer before deciding to dismiss? employers must ask these questions every time a dismissal is contemplated other factors to consider reasonable adjustments Archibald v Fife alternatives to dismissal ill-health retirement permanent health insurance payments on account of disability (s.406 ITEPA 2003) EHRC Employment Statutory Code of Practice on Employment www.equalityhumanrights.com/publication/employmentstatutory-code-practice Office for Disability Issues (ODI) Guidance on the Definition of Disability www.gov.uk/government/uploads/system/uploads/attac hment_data/file/85010/disability-definition.pdf Health & Safety Executive Guidance on work-related stress Managing the causes of work-related stress http://www.hse.gov.uk/pubns/books/hsg218.htm Instructive cases • J v DLA Piper • Morgan v Staffordshire University • DWP v Conyers 19 March Disability Matters 2015 4 June Mental health disabilities and stress at work: where are we now? didlaw.com blog & monthly newsletter