Disability discrimination and health and safety
The relationship between health and safety and disability discrimination law is illustrated by a number of recent cases. Disability discrimination law, now contained in the Equality Act 2010, is complex. There are six forms of disability discrimination in the employment context, in summary as follows:
Failure to make reasonable adjustments
Discrimination arising from disability
A recent case which illustrates the complexity of disability discrimination lawin the context of health and safety is Linsley v Revenue and Customs Commissioners (2018), Mrs L, an employee of HMRC, suffered from ulcerative colitis. The effect of this made her use the toilet urgently, could flare up and down and was aggravated by stress. The employer had a national policy on the use of car parks which stated that priority was to be given to workers needing a parking space as a reasonable adjustment. For a number of years L was provided with a dedicated parking space so that she would be near a toilet when she parked. Occupational Health had advised this and reported that stress could aggravate the condition.
In 2016 L started working at another site. She was not provided with a dedicated parking space but was informed that she could use essential user bays on a first come, first serve basis if she could not find a space when she arrived at work. The use of essential user bays required the signature of paperwork. Her alternative was to park in an unauthorised zone. This would incur a sanction, but the employer stated that this would not be applied. She was not guaranteed a space.
L went off sick with stress and complained to an employment tribunal (ET) of disability discrimination. This included a complaint of failure to make reasonable adjustments. The ET rejected the complaint. It found that the employer had not been in breach of its duty and that the alternative parking arrangements had been reasonable adjustments. L appealed to the Employment Appeal Tribunal (EAT). The EAT allowed the appeal and made the following points:
Adjustments which are recommended in an employer’s policy are likely to be reasonable adjustments.
When an employer departs from its policy, it should have a cogent reason for doing so.
In Ms Linsley’s case, the explanation by the employer for its departure from the policy was that the relevant managers did not know about it. That was not a good reason for failing to follow the policy.
The fact that the policy was not contractual did not mean that it was irrelevant when considering reasonable adjustments.
The ET had failed to consider the stress caused by Ms L who had to search for a parking space.
For any disadvantage, a number of adjustments could be made, each of which might be reasonable.
Employers are not required to select the best or most reasonable adjustment, nor the adjustment preferred by the disabled employee.
Where the particular adjustment applied by the employer is reasonable, the employer will have discharged its duty.
The adjustments in this case had ensured that the employee was parked near toilet facilities but did not address the disadvantage that was the stress caused by having to find a parking space.
Another example is Pousson v British Telecommunications plc (2004) which was decided under the Disability Discrimination Act 1995 (the predecessor of the Equality Act 2010). P was employed as a consumer service adviser by BT. The employer new that P was an insulin-dependent diabetic. P was moved to a new team. He was under more pressure and was less able to fulfil the requirements of the job because of his condition. BT’s occupational health service advised that diabetics were more prone to general viruses and infections and that P’s sickness absence was likely to exceed that of a healthy colleague. The OH service recommended the following reasonable adjustments:
An allowance in relation to sickness absence
Time away from P’s desk to test his sugar level or give himself an injection
Being allowed access to food and drink at his place of work
Alteration of his shift pattern to allow him to have food and drink at his workstation.
The employer adjusted P’s shift pattern but made no other adjustments. It applied its poor performance/attendance policy to P. He was warned about absences and time away from his workstation, related to his disability. The employer took poor performance action which required a substantial improvement in performance. P tested his blood at his desk, which resulted in complaints from colleagues. He ceased to test his blood at work and suffered a serious hypoglycaemic episode. He fell and suffered a head injury. He did not return to work and his employment was terminated. He complained to an employment tribunal of disability discrimination. The tribunal upheld the complaint on the following grounds:
The employer had treated P less favourably by taking action against him for disability-related poor attendance and absences, by subjecting him to an improvement plan and by exposing him to complaints from other workers.
The employer had failed to justify these clear breaches of the law. It had made very few of the possible reasonable adjustments and had not considered the obvious reasonable adjustment of returning P to duties where he could more easily manage his condition.
There had been fundamental systems failures. In particular, the occupational health reports should have been assessed by someone with suitable training and knowledge of managing people with disabilities.
These key failures were inexcusable in a large multinational organisation.
In 1999, in the case of M T Tiquin v Abbey National plc, T was employed as a mortgage adviser by A. Her job was changed to that of customer adviser, which she found very stressful. This caused a recurrence of irritable bowel syndrome. Her new managers refused to allow her free access to the toilets or to have a drink at her workplace. Her symptoms became severe and she was eventually dismissed. She complained of disability discrimination. Her complaint succeeded. The employment tribunal stated the following:
T’s irritable bowel syndrome was a disability. It was long-term and had a substantial adverse effect.
The dismissal had been because of T’s disability.
She had been treated less favourably than other employees.