Disability Discrimination Update   July 2009

 

Two recent cases have shed some further light on some key issues in cases of disability discrimination.

Failure to make reasonable adjustments.

In the case Fareham & College –v- Walters the Employment Appeal Tribunal has made it clear that a dismissal can itself be an unlawful act of disability discrimination by reason of a failure to make reasonable adjustments.  The Claimant in this case was a lecturer who had a condition which caused pain in her feet and restricted her mobility.  In February 2006 she commenced a period of sickness absence. Following various meetings to discuss her absence, she was dismissed on 7 September 2006. The Claimant’s request for a phased return to work commencing in January 2007 was rejected. The Tribunal determined that, as there was a reasonable adjustment that could have avoided the dismissal, the dismissal itself was an unlawful act of disability discrimination.

It did not matter, therefore, in this case whether someone who was not disabled but had been off on a similar period of sick leave to the Claimant would have been treated in the same way.  The failure to make the reasonable adjustment itself made the dismissal discriminatory. 

What does ‘likely’ mean in the context of disability discrimination?

The Disability Discrimination Act uses the word ‘likely’ in a number of contexts.  For example, one of the requirements in order for someone to be able to demonstrate a disability under the Act is that they have an impairment which has lasted or is ‘likely’ to last at least 12 months.  The word is also used in other contexts so that an impairment which would be ‘likely’ to have a substantial adverse affect on a person, but for the fact that corrective measures are in place, is to be treated as having that affect. 

The House of Lords has considered what the word ‘likely’ means in this context. They decided that ‘likely” did not mean more probable than not i.e. that there was at least a 51% chance of something happening, but should simply be taken to mean only that ‘it could well happen’ – a much lower hurdle.  The effect of this is that it is likely to become easier for employees to claim that they are disabled for the purposes of the Disability Discrimination Act.

If you require any further advice on any of the issues arising from these cases, or any other aspect of disability discrimination law, or employment law generally, please contact Helen Essery. Telephone: 024 7623 4227.