A story that hit the headlines last week about a tweeter who was apparently sacked for depression has opened up the important issue of disability discrimination for renewed scrutiny.
@badlydrawnroy claimed that he opened up to his employer about his personal situation but was dismissed three hours later. The story circulated quickly on Twitter, where the tweeter also posted what appeared to be the letter terminating his contract.
Given the swiftness of the employer’s actions following disclosure, it would appear that the termination of his employment contract is likely to be unfair. Perhaps most importantly, the employer also seems to have failed to follow the correct procedures in dealing with a potential disability issue due to mental health.
Whereas once-upon-a-time, dismissed employees would have vented their anger and frustration with friends down the pub, the digital age has given them a whole new mouthpiece. But social media can have a significant impact on the company’s reputation. Who would want to work for, or do business with, a company that treats their employees badly?
But setting the social media element aside, the fundamental problem in this case would appear to be the fact that the employer had not fulfilled its obligations under the Equality Act.
Equality Act 2010
The Equality Act 2010 draws together and builds upon previous discrimination legislation and, as is relevant to this case, prohibits discrimination because of disability. It places a duty on employers to make reasonable adjustments to working practices and premises in order to accommodate the needs of individual employees and job applicants who have a disability.
The Act prohibits various types of discrimination and also provides for limited post-employment protection as well as questionnaire-based procedures to help claimants explore whether disability discrimination has occurred.
There is no qualifying period of service necessary to make a complaint to an employment tribunal in the case of a discrimination claim and no limit on the amount of compensation that can be awarded to a successful claimant.
The Equality Act defines disability as a “physical or mental impairment that has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities”. Mental impairment, meanwhile, means an impairment resulting from or consisting of a mental illness.
The criteria for when mental illness amounts to a disability are the same as those for physical illness, that is, the illness must be one that has a substantial adverse effect on the person’s ability to carry out normal day-to-day activities. It must also have lasted, or be expected to last, at least 12 months.
This means that some stress-related illnesses may amount to disabilities, depending on whether the effect on the individual is substantial and lasts long-term. “Substantial” is defined as “not minor or trivial”. Therefore, an impairment does not have to have extreme or major adverse effects on someone to amount to a disability in law.
Forms of disability discrimination
There are six different forms of disability discrimination: direct disability discrimination (which this case would be); indirect disability discrimination; discrimination arising from disability; victimisation; harassment and a failure to make reasonable adjustments.
Direct discrimination occurs when an employer treats a disabled person less favourably because of their disability than someone who is not disabled. This type of discrimination can never be justified. Acts of direct disability discrimination may include deciding not to employ a particular job applicant on the grounds that he or she has a particular disability or a history of a particular illness
Direct discrimination that occurs because an employee ‘associates with’ someone who has a disability is also unlawful. For example, if a worker was treated badly because s/he had caring responsibilities for a disabled child, partner or parent, it would constitute direct disability discrimination against them.
Furthermore, direct discrimination based on a mistaken perception that the victim has a particular disability would also be unlawful.
Reasonable adjustments
Where it is possible to do so, employers must make reasonable adjustments to any usual employment provision, criterion or practice in order to alleviate any substantial disadvantage that the employee would otherwise have. In other words, employers must strive to accommodate the needs of an existing staff member or job applicant with a disability.
This means that policies, working practices, working arrangements, rules, procedures and guidelines will all need to be reviewed and, if appropriate, be adjusted in order to support the employee in question.
Included on the list would be policies and procedures on: recruitment; terms and conditions of employment; absence from work; opportunities for promotion; transfer or training and termination of employment, which includes redundancy arrangements.
Reasonable adjustments that employers might have to make to accommodate a disabled person include:
- making adjustments to premises
- allocating some of the disabled person’s duties to another person
- altering the disabled person’s hours of work or training
- allowing the disabled person to be absent during working or training hours for rehabilitation, assessment or treatment
- giving, or arranging, training or mentoring for the disabled person or any other person
- acquiring or modifying equipment
- modifying instructions or reference materials.
When considering whether to make these reasonable adjustments, employers should keep the following best practice guidelines in mind:
- Be proactive in your approach to making reasonable adjustments for disabled employees and job applicants – if a worker has a disability, you should enquire as to the effect it has or might have on their ability to carry out relevant duties. In making such enquiries, you should adopt a positive approach and give positive consideration to any request from a staff member for an adjustment to be made.
- Any change to an employee’s hours or duties must be implemented only with their express agreement – for example, transferring them to do an alternative job could take place only if the worker had expressly agreed to the move. Otherwise you would be acting in breach of contract.
When is it reasonable not to make an adjustment?
The legislation recognises that there are certain circumstances under which it is impossible or unreasonably onerous for an employer to make certain types of adjustment. Under such circumstances, they would need to show that the reason they did not comply with their duty was because it was not reasonable to do so.
In this context, the following factors should be taken into consideration:
- the extent to which taking a given step would actually help the employee concerned prevent the effect in question from taking place
- the extent to which it is practicable for the employer to take action
- the extent to which making the adjustment would disrupt any of their business activities
- the financial and other costs that would be incurred by taking such a step
- the extent of their financial and other resources
- the availability of financial or other assistance with respect to taking action
- the nature of their business activities and the size of the undertaking.
Checklist to guard against disability discrimination:
- Refrain from making negative assumptions about their ability to perform a particular job
- If thinking about dismissing an employee because of ill-health absence, assume that the person is disabled under the Equality Act 2010
- Talk to employees who are disabled about the effects of their disability in order to assess whether they are substantial or minor
- Seek a medical report from a GP or specialist, after obtaining consent from the staff member, in order to understand the medical condition, its impact, prognosis and any adjustments that could be made to accommodate them better
- Consult with both the individual and specialist organisations such as the Royal National Institute of the Blind on what adjustments might be helpful for the individual
- Adopt an open-minded, objective and considerate approach when dealing with disabled employees and job applicants
- Fully consider any adjustments suggested by the disabled employee and assess objectively whether it would be reasonable to make them
- If a suggested adjustment is not made, record the reasons why this decision was taken, that is, why it was considered not to be practicable or reasonable
- Keep a record of the employee’s response to any adjustments that you offer
- Dismissal should only be considered if all of the options around employing or maintaining a disabled person in employment have been fully exhausted. Such action should be informed by medical opinion where possible and a decision made only after due consideration of possible reasonable adjustments/modifications to a job role/alternative work options. Contractual options such as permanent health insurance or ill health retirement should likewise be exhausted. You also have to be able to demonstrate that you had a business justification for deciding to terminate an individual’s employment. Failure to take any of these steps could leave you open to unfair dismissal and disability discrimination claims.
Carol Smith, senior employment consultant at HR services provider Croner, which is part of Wolters Kluwer.
One Response
Difficult situation – nevertheless ….
Is an employer allowed to ask questions about this on the initial job application form? – Probably not without being in breach of employment legislation.
‘.. This type of discrimination can never be justified. Acts of direct disability discrimination may include deciding not to employ a particular job applicant on the grounds that he or she has a particular disability or a history of a particular illness ..’
Of course one should not discriminate against anyone on any basis; however, the following paragraph from the dismissal letter does raise questions:
‘.. as you admitted yourself, you have been unable to pick up the phone and make calls lately and, as a small business, we cannot continue to pay a salesman a salary when no sales are forecast ..’
On the face of it, the employee was a salesman who by his own admission was unable to do his job. If he had been a person without depression and been unable for one reason or another to do the job, how would he have been treated by his employer?
Very often solutions to these issues avoid the difficult matters of right/wrongs of the situation and concentrate on ‘process’ which is fairly solid ground. After all, it far simpler to pull the employer up on the fact that they have not followed the letter of the law rather than address the wider underlying question which is infinitely more tricky.
The same approach is often taken by the legal system – where the question is not so much did one commit an offence but more frequently did the police breach the defendants’ rights. Therefore guilt/innocence becomes a by-product of the situation in preference to ‘process’
One has no doubt that the employer will be ‘pilloried’ in the court of public opinion, but should we be asking the difficult questions which no one really wants to address?