copyright joan lewis october 2014 trent occupational medicine symposium october 2014: joan lewis...

Copyright Joan Lewis October 2014

Trent Occupational Medicine SymposiumOctober 2014: Joan Lewis

Chartered MCIPD, MA (Law & Employment Relations)

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Be Reasonable! Lessons from Case Law

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The Equality Act 2010

• Nine Protected Characteristics:(age, disability, gender reassignment, marriage and civil partnership, pregnancy and maternity, sex, sexual orientation, race, and religion or belief)

• Direct discrimination• Indirect discrimination• Victimisation• Harassment

Copyright Joan Lewis October 2014 3

Disability Discrimination

• In addition there are 2 other types of discrimination specific to disability legislation:

• Failure to make reasonable adjustments • Discrimination arising from disability so…• Essential to consider EqA provisions and

reasonable adjustments at the earliest stage• Being reasonable includes following policy.


Shark Wrestling on Sick Leave


Off sick with stress, he was then dismissed for breach of trust and confidence . Paul Marshallsea was reportedly ‘disgusted’ - “ What am I going to do now? There’s not much call for shark wrestlers in Merthyr Tydfil”. Now settled after dismissal found to have been unfair.

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Amy McIntosh, signed off sick for several weeks with tonsillitis, made a brave effort at the Commonwealth Games. She faced a meeting with managers after her

appearance as a Tunnock’s Teacake.


EqA and Pre employment health questionnaires

– Employers should generally not now ask about a job applicant’s health (including any disability) before offering a post.

– Limited exceptions are: • Assessing whether an applicant can carry out a

function • Diversity monitoring but info is confidential• Establishing whether an applicant requires

adjustments for interview/assessment


Progressive Conditions & Deemed Disabilities

• EqA 2010, Sch 1, para 8 covers progressive conditions – even if the employee’s condition is not yet substantial, it is treated as so if the condition is likely to result in such impairment.

• EqA 2010, Sch 1, para 6 deems Cancer, HIV and MS to be disabilities.

• And para 7 gives power to prescribe that other conditions should also be deemed to be disabilities.


Equality Act Provisions• People with cancer, multiple sclerosis or HIV/AIDS are

covered from the date of diagnosis regardless of the impact of the illness at a point in time.

• Disability provisions include physical or mental impairment (including anxiety, stress and depression)

• Mental health condition does not have to be a WHO recognised condition

• Disability = a substantial and long term effect ( a year) on ability to carry out normal day to day activities

• There is a legal duty then to ‘make reasonable adjustments’ to accommodate the disability


What are reasonable adjustments?• Employer decides what is reasonable• Hours of work - Altered working hours (temp or perm) or phased

return• Scope of work• Training, mentoring, support• Special equipment, adaptations• Support and supervision• Risk assessment • Planned rehabilitation process – adapt • Workstation and special equipment assessment• Workload review• Review and revise– temporary? • Transfer to different post – retrain option


What is a disability under the EqA

• A physical or mental impairment• Substantial adverse effect on day to day activities• Long term – generally likely to last 12 months + • Essential employers seek specialist advice asap and

keep it up to date: HR and OH• Don’t jump to conclusions• Tudor v Spen Corner Veterinary Centre ET/240211/05


EqA Exclusions

• addiction/dependency on alcohol, nicotine or any other substance (other than in consequence of the substance being medically prescribed)

• Seasonal rhinitis – e.g. hayfever except where another condition is aggravated

• Tendency to set fires, steal, physical or sexual abuse

• Exhibitionism or voyeurism• Disfigurements such as tattoos, body piercing,


IVF –the current employment protection rationale

• IVF begins before pregnancy – therefore section 3A of SDA does not offer against discrimination on pregnancy grounds;

• ECJ – Mayr v Backerei und Konditorei Gerhard Flockner [2008] – women treated as pregnant when IV eggs are transferred to her uterus.

• EAT Sahota v Home Office and Pipkin UKEAT/0342/09 similar – protection applies from implantation stage – if unsuccessful for 2 weeks after.

• No statutory right to time off for IVF treatment


Case Law Gallop v Newport City Council [2013]

• Employers must not ‘rubber stamp’ an OH opinion that employee is not disabled.

• An employee is disabled if 3 tests are met:• They have a physical or mental impairment• The impairment has an adverse effect on

their ability to carry out normal day to day activities

• The effect is both substantial and long term


Facts of the case

• G suffered from a stress related illness and was referred to OH in 2004

• OH advised stress likely to be work related but no signs of clinical depression – workload adjusted.

• Signed off sick with stress and referred again to OH. Similar advice.

• G raised health and safety related grievance in 2006 –GP diagnosed depression


To Tribunal..

• 2007 several periods of sickness ‘reactive depression’

• Throughout Council wrote to OH for updates and to ask whether OH considered him to be disabled under the DDA

• OH said they did not believe him to be disabled but did not explain their opinion

• G was dismissed in 2008 – claimed unfair dismissal, direct discrimination and failure to make reasonable adjustments


Court of Appeal

• No reason provided for OH opinion, so it was no more than an assertion

• Council should have formed own judgment• OH should have focused on the 3 elements of

the legal test from a medical perspective• As these had not been mentioned the OH

opinion was ‘worthless’• Employers should pose specific practical

questions to cliniciansCopyright Joan Lewis October 2014 17

Practical Implications

• It should have been clear that the employee had a long term problem

• Employers cannot rely on an unreasoned opinion• Break questions down to legal definitions; focus also

on impact of the condition and its likely duration• Make sure OH report is well reasoned – seek

clarification if it is not• Employer must form a considered view as to

employee being disabled or not


Cox v Essex County Fire and Rescue Service

• Dismissal of an unconfirmed bipolar disorder sufferer was not unfair

• C disclosed during recruitment that he suffered from a mild depression – nothing to impact on normal day to day activities

• In 2008 he fell at work and began PI proceedings against the employer.

• A year on he told employer he was seeing a counsellor as a result of severe depression and effects of concussion after the accident


Dismissal

• 2009 –suspension pending investigation into behaviour

• C informed employer he had suffered bipolar disorder for 3 months. Psychiatrist suggested a ‘hypomanic episode’. ? the bipolar diagnosis

• C withdrew his OH consent for his GP and consultant to disclose his medical condition to OH

• Employer dismissed CoxCopyright Joan Lewis October 2014 20

The Tribunals

• Claims for disability discrimination, failure to make reasonable adjustments, unfair and wrongful dismissal

• Because there was no definitive diagnosis at the point of dismissal the employer was entitled to conclude he was not disabled

• No duty to make adjustments if they do not know, or reasonably be expected to know employee is disabled


The Top Causes of Absencecipd.co.uk

• Minor illness: colds, flu, stomach bugs, headaches

• Back pain and musculo skeletal injury• Stress – on the rise• Mental ill health – also increasing• Recurring medical conditions – eg asthma,

angina• Home and family responsibilities


What is Stress Related Illness?• HSE definition: “the adverse reaction people have to

excessive pressures or other types of demand placed on them.”

• Emphasis on distinction between pressure which can motivate, and stress that occurs when pressure becomes too great.

• Stress can contribute to mental ill health manifesting as anxiety or depression, and also to physical ill health – pain, headaches, IBS, ME, psoriasis etc.

• Less obvious signs: absence, performance, relationships at work….


How common is it?

• stress is now the most common cause of long term sickness (4weeks+) for manual and non manual workers across all sectors of industry

• Non-manual- risen now to 33%• Manual -now 21%, level with acute medical

conditions and has overtaken musculo- skeletal problems to become top cause of LTS

• Now a link between job security and mental health problems rising with risk of redundancy


Warning of possible stress alerts signs• Previous sickness record – Walker v Northumberland County Council

£175k• Frequent short term absence• Poor timekeeping• Decreased productivity/performance• Change in behaviour or attitude• Poor interpersonal relations• Workload and working hours• External appearance signs – tired, untidy, disinterested?• X v Staffordshire University settled for £110k• Sports reporter NoW awarded £792,736 for unfair dismissal,

disability discrimination, bullying


Case Law – reasonable adjustments• Reasonable adjustments - paying for medical

treatment: Croft Vets Limited & ors v Butcher• no review of reduced hours: DWP (Job Centre Plus) v

Higgins • Allocated parking space can be a reasonable

adjustment: Environment Agency v Donnelly• Duty to make reasonable adjustments, discrimination

arising from disability: Horler v Chief Constable of South Wales Police ET/1600591/2012


Not so reasonable..• Sick Pay extensions – see O’Hanlon v HMRC and RBS

v Ashton• Costs too great – see Cordell v Foreign &

Commonwealth Office• Employer not aware of disability – see DWP v Alam• Supporting an ill-health retirement application is not

a reasonable adjustment- Tameside Hospital NHS Foundation Trust v Mylott

• Employee does not accept reasonable adjustments offered- see DWP v Wilson; Garrett v Lidl Ltd;


Other Case Law Decisions• Dismissal for sickness absence: BS v Dundee City

Council• Special Absence Policies not needed for disability:

Griffiths v Dept. of Work and Pensions• Chronic Fatigue Syndrome: Salford NHS Primary Care

Trust v Smith• Is obesity a disability?: Walker v SITA Information

Networking Computing Ltd• Karsten Kaltoft: European test case on obesity 25

stone child minder with slim prospect of success?


Getting More Information

• HSE ACAS• CIPD Absence Management Survey • The SME’s Guide to Sickness Absence Management –

free from www. unum.co.uk • Guidance and Code of Practice: odi.gov.uk/

equalityact• EqA 2010 – Statutory Code of Practice Employment

www.equalityhumanrights.com


copyright joan lewis october 2014 trent occupational medicine symposium october 2014: joan lewis...

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