UK: Deficiencies Of Process vs Disability Discrimination

Various types of conduct related to disability are prohibited under the Equality Act 2010. The distinctions are important and still evolving.

Firstly, and perhaps most obviously, it is unlawful for an employer to discriminate directly by treating a job applicant or employee "less favourably" than others because of disability. The "less favourably than others" part of this test means that a disabled person must be able to compare themselves to a real or hypothetical comparator.

Another form of unlawful conduct is discrimination arising from disability. This prohibits "unfavourable treatment" relating to some consequence of the employee's disability. With the introduction of this new strand of discrimination in 2010 (claims in respect of less favourable treatment could be brought prior to 2010) the government stated that it wanted to "re-establish ... an appropriate balance between enabling a disabled person to make out a case of experiencing a detriment which arises because of his or her disability, and providing an opportunity for an employer or other person to defend the treatment". There is no need for an employee to identify a comparator in an unfavourable treatment claim.

It is also unlawful for an employer to discriminate "indirectly" by applying a provision, criterion or practice that disadvantages job applicants or employees with a shared disability, unless the requirement can be objectively justified. These types of claims often concern group disadvantage.

One of the more common claims of disability discrimination brought by employees is a claim for a failure to make reasonable adjustments. Once an employer is aware (or should reasonably be aware) that an employee is disabled, it must make reasonable adjustments to deal with any substantial disadvantage affecting a disabled job applicant or employee.

Also discriminatory on the grounds of disability are harassment, victimisation and the asking of pre-employment health questions outwith very specific circumstances.

In Dunn v. The Secretary of State for Justice & Anor, the Court of Appeal (COA) considered whether a defective ill-health retirement procedure could amount to direct disability discrimination and discrimination arising from disability. The COA considered both the less favourable treatment and the unfavourable treatment tests.

In this case, the employee had been employed by the Ministry of Justice (MOJ) as a prison inspector. He suffered from depression and a heart condition which led him to request ill-health early retirement. Upon his request, the MOJ dealt with the application, but substantial delay ensued resulting in it being drawn out for months on end. The MOJ's position was that the delay (which was admitted) was as a result of a failure of its process to manage the filing of his papers and the obtaining of medical evidence. There was also an acceptance by the MOJ that it had failed to keep Mr Dunn updated or manage his expectations.

The employee brought claims of harassment and direct disability discrimination in the Employment Tribunal (ET) arising out of the way in which he was treated by the MOJ in relation to his illness. He had 16 complaints in total.

At the tribunal, two claims of discrimination involving lack of support from the employee's line manager and another for the way the application was handled succeeded and the employee was awarded £100,000. The ET found that the claimant had been treated less favourably (i.e. than others who did not have a disability) as well as unfavourably and that the "arcane and unwieldy system" of the MOJ meant that Mr Dunn was subjected to a detriment and less favourable treatment.

The employer appealed to the Employment Appeal Tribunal (EAT) where it was found that the ET had failed to give consideration to the motivation of the decision makers at the MOJ. There was no analysis by the ET as to whether non-disabled people would have been treated in the same way or any consideration as to whether the claimant's disability was in the minds of the managers who dealt with the elongated process. Ultimately, the EAT held that that the evidence did not establish any form of discrimination by the MOJ and all the claims were therefore dismissed.

On appeal to the COA, the employee brought procedural arguments about the way in which the lower courts had handled his claims. However, in relation to his substantive disability discrimination claims the COA ultimately agreed with the EAT that there had been no disability discrimination. It was held that although the ill-health retirement procedure had been defective, this did not automatically mean it was discriminatory. The "but for being disabled, I would not be in this situation" argument put forward by the employee did not constitute direct discrimination. In other words, the process is not automatically discriminatory because the claim involves discrimination. The claimant also has to show that there has been discriminatory motivation on the part of the relevant decision-maker.

The law surrounding discrimination arising from disability is still not entirely settled so we expect further clarifications from the tribunals and courts. Another case has now been appealed to the Supreme Court for further guidance on the distinction in legislation between "less favourable" and "unfavourable".

The decision (albeit that it turned on its own facts) allows employers to conduct ill- health retirement processes for disabled employees without the concern that administrative issues, such as delays or disruptions, will automatically give rise to discrimination claims. Having said that, the final word of the COA was that these types of process, which are by definition applied to people who are to a "greater or lesser extent vulnerable", should be managed without systemic failure and delay. These concluding comments act as a reminder to all employers to ensure that, wherever possible, policies and procedures should operate in such a way as to avoid or at least minimise further stress and anxiety for employees, not add to it.

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