Disability has now been a 'protected characteristic' under Jersey law for a year, and so we thought it would be helpful to review the law and consider the claims that we are starting to see.
By way of reminder, there are three main forms of disability discrimination:
- Direct discrimination - being less favourable
treatment because of a disability. This requires a direct
comparison between the employee with the disability and an employee
without the disability and is notoriously difficult to prove.
Direct discrimination can never be justified, although an employer
may be able to rely on other defences or exceptions in the law such
as an occupational requirement;
- Discrimination arising as a consequence of
disability - this applies where a person is treated
unfavourably due to something which results from the disability
(for example, if a disabled employee's condition results in
disruptive behaviour, by imposing a sanction you may be
discriminating against the employee). To be liable, an employer
needs to know or ought to know that the employee has a disability.
The employer will also have a defence to this type of
discrimination claim if it can justify the treatment. This will
require the employer to show that the measure it adopted was an
appropriate way of meeting a real business need;
- Indirect discrimination - being the application by an employer of a policy, criteria or practice (PCP) which is intended to apply equally to all its employees, but which has the effect of substantially disadvantaging a group of people who share the employee's protected characteristic (in this case, disability). Examples of a PCP include sickness absence policies, where an employee with a disability may require more sick leave than employees who don't share that characteristic, or a redundancy selection criterion based on attendance (where disabled employees may be at a greater disadvantage for the same reason). Employers are under a duty to take reasonable steps to avoid any substantial disadvantages resulting from the application of a PCP, although, if an adjustment won't reduce a disadvantage, there is no obligation to make it.
A person will be disabled for the purposes of Jersey law if they have one or more long-term physical, mental, intellectual or sensory impairments which can adversely affect their ability to engage or participate in any activity in respect of which an act of discrimination is prohibited under the law (such as recruitment, selection for redundancy and dismissal). There are two points to note from this: first, the impairment must be long term, which the law defines as lasting, or expected to last, no less than six months or for the remainder of a person's life (if shorter); and second, an employee does not need to show that their disability does actually affect their day to day life (which is quite an intrusive exercise), rather that the disability may affect their employment.
There have been approximately 13 disability discrimination claims brought before the Jersey Employment and Discrimination Tribunal since the law came into force, representing between 25% and 30% of the total number of discrimination claims brought in 2018. It was always anticipated that disability would generate more claims than the other protected characteristics and these figures appear to bear that out.
We understand that five of the disability claims that have been lodged with the Tribunal have settled or been withdrawn. There are (at the time of writing) no reported decisions in relation to the eight ongoing claims, so it is difficult to draw any conclusions on the types of complaint (direct, indirect, 'arising') that are making it to the Tribunal. More importantly, we cannot give a clear steer at this stage of how the Tribunal will be interpreting 'disabled' and how far it will expect employers to go in making reasonable adjustments to accommodate disabilities.
In our experience, the area most likely to cause problems for employers is managing sickness absence. If, as we expect, the Tribunal follows the English approach, employers will need to bear in mind the following points in relation to managing sickness related absence:
- the duty to make reasonable adjustments goes beyond equal treatment and requires employers to take positive steps to reduce any disadvantages;
- if your sickness absence (or attendance management) policy has certain trigger points for return to work interviews or requires a certain level of attendance in order to avoid the risk of a disciplinary sanction, this will amount to a 'PCP' and you will need to consider whether to make adjustments to mitigate the disadvantage to disabled employees. This might mean adjusting trigger points before holding interviews or increasing permitted absence levels before imposing a sanction (this is more likely to require adjustments for shorter periods of absence, but each case will need to considered on its facts);
- consider adjustments to the process if appropriate, such as putting back by a day or two a return to work interview if this is normally scheduled for the day of return and this would cause avoidable stress.
Even though we've set out some key points to consider, disability is not a bar to running an ill-health capability process. You can continue to manage your workforce, you just need to be more careful now to avoid the risks of a disability discrimination claim.
Many businesses will already have taken steps to prepare for the law but, by way of reminder, you will be following best practice and putting yourself in a stronger position to defend a discrimination claim by:
- reviewing and updating your employment terms, policies and procedures (including recruitment, remuneration, bonus, promotion, redundancy, sickness management and attendance) to ensure that they are flexible enough to allow reasonable adjustments to be made;
- updating your equal opportunities policy;
- reminding staff, particularly those in management roles, of their obligations;
- considering legal advice if you are planning an ill-health capability or redundancy exercise; and
- starting to plan for physical adjustments to your premises if an employee is suffering a substantial disadvantage due to a physical feature – you are now half way through the two year grace period to allow time to make these adjustments.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.