What a recent Ex-NHS employee disability discrimination win can highlight to employers and HR professionals about the processes to dismissal

By Louise Brown and Carole Spencer, Excello Law

May 13 2020 - The BBC's Panorama programme recently revealed that the Department for Work and Pensions (DWP) has lost more disability discrimination cases than any other UK employer. This statistic is particularly remarkable, since the Equality Act, 2010 requires public sector bodies to be particularly mindful of countering discrimination. However, the DWP is far from being the only UK employer that needs to improve its approach to disability discrimination in the workplace. Issues relating to disability are often overlooked by employers when problems arise with employees, particularly where "invisible disabilities" may be a factor.

The legal duties relating to disability discrimination apply throughout the entire course of employment, from hiring to termination. It is particularly important that employers consider disability issues in their disciplinary and dismissal practices, since a failure to do so can lead to costly and damaging Employment Tribunal claims.

The Equality Act, 2010 defines a disability as a physical or mental impairment which has a substantial and long-term adverse effect on a person's ability to carry out normal daily activities. The condition must not be trivial and must have subsisted for over 12 months. However, recurring conditions are treated a disability, even if the adverse effects don't last for more than 12 months during each episode - provided that the adverse effects are likely to recur in the future.

Many common medical conditions can be captured by this definition, including arthritis, back pain, depression, anxiety and fibromyalgia. The impact which such conditions have might often not be readily apparent to an employer. Employers therefore need to be acutely aware that the possibility of a disability having an impact may need to be considered, even where an employee is not obviously disabled. Indeed, even where an employee does not consider themselves disabled per se, a medical condition from which they suffer may nonetheless count as a disability under the statutory definition.

Employers are legally required to consider making reasonable adjustments to aspects of a job or workplace which place a disabled person at a substantial disadvantage by comparison to their able-bodied colleagues. However, employees cannot lawfully be compelled to declare any disabilities to their employer, even when asked to do so on joining. This means that sometimes the existence of a disability or medical condition might only come to light after it has already had an impact. It's worth bearing in mind that employees may be embarrassed to reveal to their employer that they have a disability. It is, for example, often the case that people are reluctant to reveal mental health conditions to their managers - although the stigma that once surrounded mental health issues is thankfully abating.

The duty to make reasonable adjustments for disability prevails throughout employment. This means that whether employers first become aware of a disability during the probation period, or during the advanced stages of a disciplinary process, the duty not to discriminate and to consider reasonable accommodation applies at all times.

Employers should also be careful to avoid unnecessarily exacerbating a medical condition during the course of an investigation or disciplinary process. The duty to consider reasonable accommodation also applies to such processes. For example, we recently acted for a former NHS worker who was dismissed by the NHS due to a compulsion, caused by one of her disabilities, which caused her to frequently check when her medical appointments were. The claimant's employer commenced an investigation, which increased her already high anxiety. Because of her anxiety, she pushed for more information on the investigation from her line manager.

The Employment Tribunal found that the dismissal was unfair as the claimant "had no way of knowing that her actions were prohibited or could lead to dismissal" and the conduct for which she was dismissed "was not culpable or blameworthy".

Additionally, the Tribunal found that the employer had failed to take into account her health or disability at any stage of the process. The Tribunal, therefore, further determined that both her the suspension and dismissal were due to something arising from the complainant's disability. As such, they amounted to disability discrimination.

This case underlined the importance of proper, impartial processes and of approaching the particular circumstances of each case with an open mind. In this case, the processes followed by the employer were heavily criticised, as the investigators and decision makers failed to properly investigate or consider the relevant matters. They also entered the process with closed minds and came to conclusions which were perverse and unreasonable.

When considering disciplining or dismissal of an employee, employers should tread carefully in order to avoid discrimination cases, where there is no limit to the damages which the Tribunal may award. Compliance is best secured by scrupulously following fair and impartial processes, which should include a system of clear, early warnings when issues do arise. Even when, at first glance, the performance or disciplinary issues do not appear to be directly caused by an employee's health condition, employers would be wise to consider with an open mind the possibility that an employee's health or disability may be having a real impact.

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