Almost every week I find myself advising employers on all sorts of aspects of discrimination law. Common scenarios include an employee, very early in their probation period, taking substantial leave from work with possible mental health issue. Another is ‘what does a reasonable adjustment look like?’ in this or that situation. In my experience, the organisations I advise are looking at how they can be a good employer and ‘do the right thing’, rather than looking for easy ways to exit someone who has a significant health issue.
I’d like to share, in a couple of blogs, some recurring thoughts I have about disability discrimination issues.
When do you concede an employee is disabled… and when don’t you?
Last year I advised a company who had made an employee redundant when she didn’t wish to move with them to their new HQ. The first we knew of any disability issue was when her ET1 (Tribunal claim form) hit my client’s desk. She was claiming disability discrimination because of her alleged disability (arising from anxiety and panic attacks) and on the grounds that reasonable adjustments should have been made to her redundancy process, to prevent her being dismissed.
In the majority of disability discriminations claims, the question of whether someone is in fact ‘disabled’ within the meaning of the Equality Act 2010 is easy to determine and readily conceded by employers. It will often be sensible legal advice to say to an employer defending such a claim that there’s no point wasting time and costs arguing something that you’re highly likely to lose on and potentially end up looking mean and uncaring as a result. Pick your battles, and focus your resources on fighting the question of whether there was in fact any discrimination.
However, in this particular case that I was handling, and having reviewed the very sparse medical information the employer had, I advised my employer client that I felt it should be for the employee to prove to the Tribunal she was indeed disabled. It didn’t feel a particularly comfortable position to take but the law is pretty clear: in order to be considered disabled under the Equality Act, the employee must demonstrate that they a physical or mental impairment which has a substantial and long term adverse effect on the person’s ability to carry out day to day activities.
So we contested the disability point. And at the preliminary hearing in the Tribunal process, the employee wasn’t, in fact, able to satisfactorily pass any parts of this test and therefore her entire claim was struck out (she had less than 2 years’ service, so couldn’t bring an ‘ordinary’ unfair dismissal claim).
The recent EAT case of Mutombo-Mpania v Angard Staffing Solutions Ltd is another reminder that the burden of proof is on the claimant to show, through their own evidence or medical evidence, that the effects of their impairment which they are claiming to be a disability do indeed pass this test of having a substantial adverse effect on their ability to carry out normal day-to-day activities.
Mr Mutombo-Mpania had the impairment of Essential Hypertension and gave evidence of his symptoms, including headaches, fatigue, breathing difficulties and lack of confidence. Despite the burden of proof being on him in this respect, he provided no evidence for the Tribunal of the functional impact of his impairment on his day-to-day activities. Consequently the Tribunal decided, given the lack of evidence from him of the functional impact of his impairment on day-to-day activities, he had not proved he was disabled. Therefore his claim was struck out at that point. Mr Mutombo-Mpania clearly had health issues but this didn’t make him disabled in the eyes of the Equality Act.
Pick your battles
So it is very much my view that if, as an employer, you have enough information in a disability discrimination claim (either from occupational health reports or your own observations of your employee) to determine whether the legal test for disability is established, then there is nothing to be gained from ‘putting the employee to proof’ – i.e. insisting that they prove they are disabled.
Such a stance by an employer is only recommended where you reasonably believe that the claimant’s health issue are not sufficiently significant to amount to a disability.
But where you do believe that you have reasonable grounds for refusing to concede that the health condition amounts to a disability, it may be worth taking a stand.
As usual, if you have any discrimination issues you’d like to discuss, do please get in touch with me.
Email Anne-Marie or call 0117 325 0924