• Robert Spicer

New Disability Discrimination Cases

Scepticism as to back pain

Case Hemati v Sportec (UK) Ltd (in liquidation) and another (2013) Eq Opp Rev 242:30, Watford ET

Facts H was employed by S at its store in Barnet, North London. In 2012 she was told to relocate to the South London branch. She objected to this on the basis that she had a back problem and could not travel so far on public transport. S’s managing director did not believe that H had back problems. He refused to allow her to return to work until she had obtained a fit note. H’s GP stated that she had a physical impairment in that she suffered from a central intervertebral disc prolapse. She was unable to sit down or to drive for more than 15 minutes at a time and was therefore a disabled person. H complained of disability discrimination.

Decision 1. Refusing to allow H to return to work, and not paying her, was unfavourable treatment arising from her disability.

2. The refusal to allow her to return to work was not a proportionate means of achieving a legitimate aim. A proportionate response would have been to tell H immediately that it was suspected that her disability was not genuine and to see an independent occupational health adviser. S should have been paid when she was not working.

Disability

Peanut allergy

Anaphylactic shock

Case Wheeldon v Marstons plc [2013] Eq LR 859, Birmingham ET

Facts W was employed as a pub chef by M. In 2011 he suffered an allergic reaction to nuts while at work. He did not return to work because he argued that it would put his health at risk. W complained of disability discrimination. He alleged that the employer had failed to make reasonable adjustments in that it had not offered him work where he would not be at risk. W had been hospitalised for anaphylactic shock seven times since he was aged 16.

Decision At a pre-hearing review, it was decide that W was a disabled person. The growing intensity of the anaphylactic shock episodes had a significant effect on his day-to-day life.

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