• Robert Spicer

New Disability Discrimination Cases

Notice of disability

Agitated behaviour

Case Spence v Covidien UK Commercial Ltd (2013) Eq Opp Rev 242:32, Leeds ET

Facts Ms S displayed extreme nervousness and anxiety at work on a number of occasions. Her employer did not investigate any underlying cause of her behaviour. She was put on a performance improvement plan after her manager stated that her conduct had been unprofessional and inappropriate and her relationships with colleagues fractious and disrespectful. Ms S resigned and complained of disability discrimination.

Decision 1. It was conceded that Ms S was a disabled person.

2. The employer had denied that it knew of her disability. The ET found that it had actual knowledge of the disability. Even if it had not, it had constructive knowledge because it should have been alerted to the condition by the employee’s extremely agitated and nervous behaviour.

Reasonable adjustments

Burden on employer

Case Environment Agency v Donnelly (2013) Eq Opp Rev 243:17, EAT

Facts D, an employee of EA, suffered from osteoarthritis and spondylitis. It was accepted that she was a disabled person. Her mobility was impaired. In 2009 her health problems were such that she was unable to do her job. Efforts were made to find her an alternative post. In 2011 she was dismissed. She complained of unfair dismissal and disability discrimination. The ET found that the employer had failed to make reasonable adjustments in respect of car parking facilities. D was required to park in an overspill car park 10 minutes walk away, which involved a 10 minute walk over uneven surfaces. A reasonable adjustment would have been to allocate a reserved position in the normal staff car park. The employer appealed to the EAT.

Decision The burden of a reasonable adjustment falls on the employer rather than the employee. It was not for the employee to adjust her own work so that she was not disadvantaged by the employer’s parking arrangements. Rather, it was for the employer to adjust parking arrangements to allow the employee to exercise her contractual right to arrive at work at 9.30 a.m.

Reasonable adjustments

Removal of disadvantage

Case Secretary of State for Work and Pensions (JobCentre Plus) v Higgins (2013) Eq Opp Rev 243:19, EAT

Facts H, an employee of S, suffered from a heart condition and was a disabled person. He was long-term absent from work through sickness. He was offered a 13 week phased return to work, which he rejected. The employer refused to extend the period and H was dismissed. His complaint of disability was upheld by the employment tribunal on the basis that there had been a breach of the duty to make reasonable adjustments. The employer appealed to the EAT.

Decision 1. The appeal was upheld.

2. The ET had failed to identify how the adjustment would have removed the disadvantage to H and had instead focused on whether H had acted reasonably in refusing to agree to the proposed rehabilitation programme.

3. A reasonable adjustment must be seen as a way of removing a specific disadvantage caused to an employee by some provision, criterion or practice applied by the employer. The duty to make reasonable adjustments is not a duty to accede to reasonable requests made by a disabled employee.

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