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Handling the obligations on employers arising in relation to employees with disabilities can be challenging and there are many hidden traps in the equality legislation which employers often fall into. We have discussed some of these in the past; see our recent blog 'Extremely Reasonable Adjustments: Just how far does the employer have to go?'.

This month, there have been two appeal decisions regarding disability law published which serve as useful reminders of some of the issues to look out for when dealing with disabled employees.

Disability status

The first case, Taylor v Ladbrokes Betting and Gaming Ltd, deals with how an employer establishes whether an employee is disabled and thereby afforded additional protection under the law.

To recap, the statutory test in the Equality Act 2010 (“the Act”) states that someone is disabled if they have a physical or mental impairment which has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities. This includes impairments that would have such an effect but for “measures” being taken by the individual, such as taking medication.

There is also statutory guidance on determining whether someone is disabled under the Act, which states that a person is deemed to have an impairment with a substantial adverse effect if they can show that the condition they suffer from is progressive, and, as a result of it the condition, it is likely that the impairment will have a substantial adverse effect in the future. The guidance also states that if a person can be reasonably expected to modify their behaviour to reduce the effects of the impairment, then they may not be disabled.

In a previous case, the Employment Appeal Tribunal held that an individual controlling their type 2 diabetes by abstaining from sugary drinks was not taking ‘measures’ within the meaning of the Act to manage their disability. They were only reasonably modifying their behaviour, and were not disabled.

In this case, Mr Taylor, who also suffered from type 2 diabetes, argued that he was unfairly dismissed and suffered disability discrimination. His employer, Ladbrokes, argued that he was not disabled within the meaning of the Act. Mr Taylor contended that he suffered from a progressive condition which had an effect on his day-to-day activities, albeit one that was controlled through medication, and that in the future may have a substantial adverse effect on these activities. The medical evidence referenced the long-term effects of diabetes can include retinopathy, neuropathy, and cardiovascular disease, although these are less likely if the disease is well managed through medication, diet and exercise. The medical report was also critical of Mr Taylor’s lifestyle choices in this regard.

At first instance, the employment judge held that Mr Taylor was not disabled because the possibility of progression was small, especially if well managed through diet and exercise. The Employment Appeal Tribunal (“EAT”) disagreed. The test for whether a condition is likely to progress and cause a substantial effect on an individual should not be determined by reference to a percentage of the population in whom the condition might occur, but instead should consider whether there is a chance, having regard to the particular individual in question, that such a condition may develop. The EAT did not reach a conclusion on whether an individual’s conduct in dealing with their disability should be taken into account when assessing whether their condition is progressive, and the case was remitted back to the original tribunal for assessment.

While it is not clear whether the original tribunal will find that Mr Taylor is disabled, those who employ diabetes sufferers should ensure that they do not dismiss any claims that they are disabled outright and should instead consider the evidence carefully. This case is also a useful reminder that, when considering whether an employee is disabled, it is important not just to contemplate the effect of their condition at the present time, but also how their particular condition might progress, obtaining medical advice if necessary. Moreover Employers should be aware that even a robust basis for legitimate criticism of life style choices impacting on abilities will not necessarily take the employee out with the ambit of the protections provided by the Act.

Reasonable adjustments

In the second case, Firstgroup PLC v Paulley, the Supreme Court has just issued its decision in the high profile claim by a wheelchair user that Firstgroup had failed to make reasonable adjustments for him when he was unable to board a bus because the wheelchair space was occupied by a woman with a buggy. The woman occupying the space did not vacate the space as she did not wish to fold her buggy for fear of waking her sleeping child. Mr Paulley contended that the ‘first come, first served’ policy was a provision, criterion or practice which placed wheelchair users at a disadvantage, and that it was not a sufficient adjustment for the bus driver to merely request that the other passenger move.

At first instance the court agreed, stating that something more was required, for instance changing the terms of carriage to state that wheelchairs trump buggies in such instances, and removing individuals who refuse to move from the bus. The Court of Appeal disagreed, outlining that this would often be impractical and would involve bus drivers having to engage in difficult considerations, for example in circumstances where the space was occupied by an individual who was disabled but not in a wheelchair, and required the space for their walking aids. Mr Paulley further appealed to the Supreme Court.

Although this case deals with reasonable adjustments to be made by a service provider, it is useful to consider its implications for employment law purposes. The Supreme Court was divided on which adjustments would be reasonable, illustrating that this is a complex area of law. The majority held that it would be unreasonable to require individuals who refuse to vacate the space to leave the bus entirely, although they agreed that something more than merely requesting them to move was required. It was suggested that refusing to move the bus until the wheelchair space was vacated may be a reasonable adjustment. The dissenting judges considered that this did not go far enough, because “disabled people are, for very good reasons, a special case”, and that difficulty in implementing an adjustment “should not be the lone yardstick against which its reasonableness should be measured”.

In terms of application to employment law, this case is a further illustration of the principle that, just because an adjustment may be unpopular with other employees or customers, this may not be sufficient justification for failing to implement it. While the majority of the Supreme Court did not go so far as to require drivers to make non-disabled passengers vacate the space, they still found that drivers should try to pressure them into doing things which they do not want to do to enable the reasonable adjustment to be made for the aid of the disabled person.

The case also illustrates the established principle that an individual does not have to show that the adjustment would have effectively avoided the disadvantage to the disabled person for it to be regarded as a reasonable one for a service provider (or employer) to have to make; it is sufficient to demonstrate that a chance of success would have been arisen. In this case, it was not clear whether the driver refusing to move the bus would have persuaded the woman with the buggy to move. However, there was a chance that she would have done so, and this was sufficient to render the adjustment reasonable.

While neither of the cases outlined above provide definitive guidance on the issues raised, they are helpful to illustrate how complex disability related cases can be.

If you have any questions about your duties towards disabled employees please get in touch with any member of the Stronachs’ Employment Team.

Annika Neukirch, Solicitor

Chambers UK 2018

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