Disability discrimination – case law demonstrates how employers can get it wrong
Although “discrimination on the basis of disability” is a relatively new concept introduced by the Equality Act 2010, it is quickly becoming a common occurrence in employment tribunal claims. Eleanor Gelder summarizes five recent case law examples of disability-related discrimination.
1. Terminating an employee due to absences due to a disability
Employers must exercise caution when terminating a disabled employee whose absences due to disability have triggered the organization’s attendance policy.
The Court of Appeal held in Griffiths v Secretary of State for Work and Pensions that dismissing an employee for disability-related absences that trigger the application of an attendance policy may constitute disability discrimination.
2. Reasonable adjustments during the process of redundancy
Employers who fail to make reasonable adjustments during the redundancy process may face a claim for disability discrimination.
In Waddingham v. NHS Business Services Authority, the employee was required to participate in a competitive interview process as part of a redeployment exercise while undergoing cancer treatment.
The employment tribunal determined that the employer’s failure to make reasonable accommodations for Mr Waddingham constituted disability discrimination.
The tribunal determined that a reasonable accommodation would have been to evaluate Mr Waddingham for the role without requiring him to compete for the position.
Similarly, in London Borough of Southwark v Charles, the employer was aware of the employee’s disability, which precluded him from attending administrative meetings, including redeployment interviews.
The EAT determined that the employer’s requirement that the employee participate in redeployment interviews constituted disability discrimination.
3. Failure to consider alternative employment opportunities
Employers must carefully consider how disabled employees’ skills can be retained and what training may be required to successfully redeploy them during a redeployment exercise.
Horler v Chief Constable of South Wales Police found that the police had failed to meet its duty to make reasonable adjustments by failing to consider alternative positions for a police officer unable to perform frontline duties due to a disability.
The police were unable to justify the unfavorable treatment because the means used to accomplish the legitimate goal – effective policing – were disproportionate. As a result, this amounted to disability discrimination.
4. Refusing to provide negative verbal references or to withdraw job offers
Negative verbal references based on a former employee’s disability-related absence may constitute disability discrimination. Similarly, the subsequent withdrawal of a job offer could be considered.
In Pnaiser v NHS England and another, the employee’s disability necessitated a number of extended absences and required her to work from home on a regular basis.
The EAT determined that both her former employer’s negative verbal reference and the prospective employer’s subsequent withdrawal of a job offer constituted disability discrimination.
5. Adjusting bonus structures in a reasonable manner
Refusing to pay a bonus to an employee who has received a formal warning for disability-related sick leave may result in a successful disability discrimination claim.