Disability discrimination can be a particularly difficult area for employers to navigate. Employers often feel like they are treading on egg shells once on notice that an employee may be disabled; trying to balance the demands of the business with accommodating the needs of the employee. As is often the way, the particular circumstances of a case will be key, which makes it hard to offer set rules in terms of dealing with matters involving disability. However, two recent rulings provide some clarity in this area of the law.
In the case of Davies v Scottish Courts and Tribunal Service, SCTS was found to have unfairly dismissed the Claimant and discriminated against her by failing to look at the symptoms of her health condition. The Claimant was going through the menopause and suffering from extreme symptoms, such as heavy bleeding, amnesia, tiredness, light headedness and even fainting. The Claimant had also been suffering from cystitis for which she was taking medication. She raised concerns that two members of the public may have accidentally taken her medication, which she mistakenly remembered putting in the jug of water on her desk in the court room. A health and safety report followed, which opined that the Claimant must have known this not to be true, as it would have been apparent that the medication was not in the water, and suggested the incident amounted to gross misconduct. Despite an occupational health report explaining the symptoms of the Claimant's condition, a subsequent disciplinary hearing found that the Claimant had acted dishonestly in recounting the incident, and she was dismissed.
The claimant brought successful claims of unfair dismissal and discrimination arising from disability in the Employment Tribunal. SCTS was criticised for giving weight to the health and safety report, which had strayed into matters outside of its remit. However, central to the Tribunal's findings of unfair dismissal and discrimination was SCTS's failure to take into account the Claimant's explanation that she was confused and stressed, and the fact that her medical condition could cause memory loss and confusion.
Clearly, not every woman going through the menopause will be disabled but in this case the Claimant's extreme symptoms meant that she was classed as disabled. The take away message from this case is that employers should look at the symptoms of an employee's health condition and the effect the symptoms have on them, before deciding what action to take.
The case of DL Insurance Services Ltd v O’Connor, considered absences relating to an individual’s disability.
The Claimant had a high level of absences over a number of years, caused by a disability. DLIS had approached the matter sensitively by allowing her to have more sickness absence than its sickness absence policy allowed. Despite this, in 2016, the Claimant received a written warning for the 60 days' absence she had had in the previous year, which meant that her sick pay was suspended.
The Claimant claimed discrimination arising from disability and the case revolved around the question of objective justification. DLIS argued that by giving the warning it had been pursuing the legitimate aim of ensuring adequate attendance levels and seeking to improve the Claimant's attendance. The EAT, upholding the Tribunal's original decision, found that the warning was not a proportionate way of achieving those aims. Specific factors that were taken into account in this finding included the fact that the Claimant was genuinely ill and could not avoid her absences, and DLIS had failed to obtain an occupational health report in contravention of its own policy.
This ruling is a reminder to employers not to make generalisations when dealing with sickness absence but that they must be able to explain why disciplinary action is appropriate looking at the particular circumstances of a case.