Disability Discrimination Case Law Review for 2010

1. Disability Discrimination Case Law Review for 2010

2. Meaning of Disability- Mental Impairment • J v DLA Piper UK LLP [2010] IRLR 36 EAT • Offered a job with DLA, subject to completing a medical questionnaire. • J told HR manager that she had a history of depression. Claimed she was told that the role was a high pressure one and that she ought to reconsider whether it was suitable for her. A few days later, a recruitment freeze. The offer of employment was withdrawn. • J claimed disability discrimination.

3. Is there an impairment? • EAT – • whether the claimant's ability to carry out normal day-to-day activities is adversely affected (on a long-term basis), and to consider the question of impairment in the light of those findings. • If has been adversely affected on a long-term basis, it will in many cases follow as a matter of common-sense inference that the claimant is suffering from a condition which has produced that adverse effect - ie, an "impairment".

4. If claimant's ability to carry out normal day-to-day activities has been substantially impaired by symptoms characteristic of depression for 12 months or more, it would in most cases be likely to conclude that he or she was suffering "clinical depression" rather than simply a reaction to adverse circumstances. • A GP is fully qualified to express an opinion on whether a patient is suffering from depression. Depression is a condition very often encountered in general practice.

5. Recurring Conditions J v DLA Piper • five-year period suffers • several short episodes of depression which have a substantial adverse impact on her ability to carry out normal day-to-day activities • but between those episodes is symptom-free and does not require treatment, it may be appropriate to regard her as suffering from a mental impairment throughout the period in question, i.e. even between episodes. Treated as a single condition producing recurrent symptomatic episodes.

6. Meaning of Disability – Long Term Effect • Patel v Oldham Metropolitan Borough Council [2010] IRLR 280 EAT • In order to fall within the DDA's definition of disability, the effect of an impairment has to be “long term”. This can be satisfied by showing that the period for which it lasts “is likely to be at least 12 months”.

7. Mrs Patel was a primary school teacher. • Various periods of absence from 2005 up to dismissal on grounds of capability in 2007 • IT held not disabled on the basis that she had suffered from two different impairments, myelitis and myofascial pain syndrome, each of which had lasted for less than 12 months, and it was not “likely” that either would have lasted for at least 12 months.

8. EAT allows appeal • the duration of related consecutive impairments can be aggregated for the purpose of meeting the long-term threshold. • “fine distinctions between one medical condition and its development into another are to be avoided.”

9. Direct Discrimination • Aylott v Stockton-on-Tees Borough Council [2010] IRLR 994 CA • A was a disabled person with bipolar affective disorder. IT held direct disability discrimination. The reasons for that finding included the stereotypical view taken of mental illness by the council in its reactions to A’s disability. Overturned by EAT. • Issues with his work and monitoring put in place. Confrontation with manager. Suspended and disciplinary proceedings. Dismissed on health grounds.

10. Comparators – approaches contrasted • IT Broad - a comparator who had a similar sickness record in respect of, i.e. a complicated broken bone or other surgical problem, would not have been subjected to the same treatment. • EAT Narrow -having a similar sickness absence record, would have been a person who had recently been moved to a different post and whose past behaviour and performance had caused concern

11. Court of Appeal • Upheld IT broad approach. • Warned - dangers in attaching too much importance to constructing a hypothetical comparator and to less favourable treatment as a separate issue. If a claimant was dismissed on the ground of disability, then it is likely that he was treated less favourably than a hypothetical comparator not having the particular disability would have been treated in the same relevant circumstances. The finding of the reason for the dismissal supplies the answer to the question whether he received less favourable treatment.

12. Eagle Place Services Ltd v Rudd [2010] IRLR 486 EAT • Dismissed solicitor who had detached retinas in both eyes, which required adjustments to the amount of time he spent in the office and his working conditions • E/er ran the “B*** defence” - a hypothetical non-disabled comparator would have been treated no differently since, in large law firms, it was normal to manage dismissals by summarily dismissing • Q for EAT was the extent to which the employers unreasonable behaviour was relevant to whether they had unlawfully discriminated.

13. EAT held • It is not open to an employer to say that it has not discriminated against a claimant because it would have behaved unreasonably in dismissing a comparator. It is one thing to find, as in Bahl v Law Society, that a named individual has behaved unreasonably to both the claimant and named comparators; it is quite another to find that a corporate entity would behave unreasonably to a hypothetical comparator when it had no good reason to do so.

14. Associative Discrimination • EBR Attridge Law v Coleman (No.2) [2010] IRLR 10 EAT • DDA can be construed, as required by the ECJ, so as to prohibit direct discrimination and harassment against an employee on grounds that they care for a disabled person, even though the DDA in terms protects only those who are disabled themselves. (does not extend to other DDA strands)

15. Duty to make reasonable adjustments • Secretary of State for Work and Pensions v Alam [2010] IRLR 283 EAT. • Did the employer know both that the employee was disabled and that his disability was liable to affect him in the manner set out in the legislation? • If "no", ought the employer to have known? • If the employer could not reasonably have been expected to be aware of the relevant effect, no duty to make reasonable adjustments arises because the reasonableness of his ignorance would make it unreasonable to impose on him the duty to adjust.

16. Duty to make reasonable adjustments • Chief Constable of South Yorkshire Police v Jelic[2010] IRLR 744 EAT • J chronic anxiety syndrome – accepted disabled • Moved to desk job with little face to face contact with public • Changes made expected to deal directly with incidents and with members of the public who attended the police station, and to conduct investigations relating to missing from home enquiries • Medical advice – unable to do this. Retired on medical grounds. RA not explored.

17. Decision • IT found that the employer was liable for failing to make reasonable adjustments. Would have been a reasonable adjustment to swap the jobs being undertaken by the claimant and another police officer • Police a disciplined service so other PC could have been ordered to move. • EAT agrees – edge of reasonableness?

18. Injury to feelings awards • Da'Bell v National Society for the Prevention of Cruelty to Children [2010] IRLR 19 EAT • EAT has formally up-rated the bands by 20% to take account of inflation. The higher band for the most serious cases is now from £18,000 to £30,000 (previously up to £25,000 maximum); the middle band is from £6,000 to £18,000 (previously up to £15,000) and the lower band is now up to £6,000 (formerly £5,000).