Legal expert James Townsend reviews recent case law and provides tips for handling potential claims

Though many employers are taking steps to improve workplace diversity and increase awareness around mental health, disabled people continue to face discrimination at work. More than half of all disabled people have been bullied or harassed in the workplace because of their impairment, while 21 per cent try to hide their disability from their employers, according to research by Scope.

Employers have a legal duty to make reasonable adjustments, where necessary, to ensure employees with disabilities are not disadvantaged at work.

Legal definition

Disability discrimination occurs where a disabled person is treated unfavourably because of something arising in consequence of their disability, and it cannot be shown that the treatment is a proportionate means of achieving a legitimate aim.

It is not easy to determine whether an employee who is suffering from a physical or mental condition is in fact 'disabled' within the legal framework of the Equality Act 2010. The Employment Appeal Tribunal (EAT) recently considered the legal definition in two cases.

In Taylor v Ladbrokes Betting & Gaming Ltd, the EAT held that it may be possible for an employee with type 2 diabetes to establish that they are a disabled person within the legal definition, in light of the progressive nature of the condition. This is despite the earlier Metroline Travel Ltd v Stoute ruling, which indicated that it would be difficult to establish that the condition itself constitutes a disability even if the effects of a healthy, balanced diet were to be disregarded.

Taylor highlights the importance of employers obtaining detailed, relevant medical evidence from medical experts, particularly regarding the long-term effect of the condition and its progressive nature. Following this decision, it should not be assumed that this type of condition will necessarily be protected from disability discrimination under the Equality Act, even when well controlled by diet.

In Herry v DMC and Governing Body of Hillcrest School, the EAT provided guidance on the diagnoses of stress, especially in the context of long-term absences. This judicial guidance clarified that the labels of 'stress' and 'depression', and the long-term nature of an employee’s absence, cannot be relied upon alone to establish that an employee suffers from a disability within the legal definition.

This is a welcome development, given that discrimination claims concerning stress suffered in the workplace are not uncommon. Following Herry, employers should remain mindful that stress could be considered a disability, but the best approach is to look behind the label used and assess each employee's ability to carry out day-to-day activities on a case-by-case basis.

Discrimination arising from disability

In O'Brien v Bolton St Catherine's Academy, the Court of Appeal held that an employer's decision to disregard new medical evidence and to dismiss an employee on long-term sickness absence amounted to discrimination arising from disability. The case emphasises that employers cannot be expected to wait for an employee on long-term sick leave to recover and return to work.

It is sensible to maintain a written record of issues being caused by a long-term absent employee, to evidence disruption to the business. Employers may also wish to review all medical evidence during the entire sickness absence process – including any that comes to light between an original decision to dismiss and any appeal hearing.

In Charlesworth v Dransfields Engineering Services Ltd, the EAT clarified that the correct legal test for discrimination because of something arising from, or in consequence of, a disability in a dismissal context is whether the employee’s disability-related absence was one of the reasons for their dismissal. Here, the EAT found that was not the case.

However, each case will be different, and in similar cases a disability-related absence could be the reason for dismissal (which will accordingly be disability-related discrimination unless justified). The reason for any dismissal, and the way that decision is explained, is therefore likely to be crucial.

Reasonable adjustments in recruitment

In Government Legal Service v Brookes, the EAT held that a job applicant who suffered from Asperger's syndrome had been indirectly discriminated against by being required to sit a multiple-choice situational judgement test as part of the recruitment process, and that the use of the test could not be justified. It agreed with the employment tribunal's ruling that the employer had failed to make reasonable adjustments, given its refusal to accommodate the applicant's request to submit her answers in an alternative short, narrative form, and that the applicant had suffered from discrimination arising from disability.

Following this decision, employers should be alert, flexible and responsive to requests for reasonable adjustments, as they might be expected to allow disabled candidates extra time or adjust their chosen method of testing where it could place a candidate at a disadvantage.

There is also a duty on employers to make reasonable adjustments to help employees overcome disadvantage resulting from an impairment. For example, the employer should consider providing nearby parking facilities if available, suitable seating and flexible working. Providing a mentor or a piece of equipment, and allowing for regular breaks, may also be appropriate.

There is no ceiling on tribunal payouts in disability discrimination cases – unlike in other kinds of unfair dismissal cases. Payouts can therefore be costly for employers that get it wrong.

James Townsend is a partner at Michelmores