Mark Shulman, Consultant Solicitor at Keystone Law

DISABILITY DISCRIMINATION
Whether disabled
Was a Claimant disabled within the meaning of the Equality Act 2010 on the basis that his medical condition was likely to recur? No said the EAT on the facts in [Thyagarajan v Cap Gemini UK PLC]() UKEAT/0264/14/JOJ.

Background
In February 2011, the Claimant suffered a retinal detachment to his left eye, leading to surgical treatment. In March he suffered retinal detachment of the right eye and had an operation on the same day. In April he again suffered a further retinal detachment on the left eye, operated on the following day.

After various absences, the Claimant finally returned to work on a phased basis in May 2011. He was able to continue at work until his summary dismissal in August 2011. An OH report said that the long-term risk of further retinal detachment was low following surgery (about 2% after 12 months).

The question for the EJ at a Pre-Hearing Review was whether a further detachment could occur over the next 12 months. The ET ruled that the detachment was not likely to recur within 12 months and therefore the Claimant was not disabled. The Claimant appealed challenging the EJ's finding that the substantial adverse effects of the Claimant's physical impairment, (i.e. double retinal detachment), on his ability to carry out normal day-to-day activities was not "long-term" under section 6(1)(b) of the Equality Act 2010 ("EA").

Long term effect
Under the EA, the effect of an impairment is "long-term" if it falls within paragraphs 2(1) and (2) of Schedule 1 to the EA:

"2(1) The effect of an impairment is long-term if—

(a) it has lasted for at least 12 months,

(b) it is likely to last for at least 12 months, or

(c) it is likely to last for the rest of the life of the person affected."

Further, paragraph 2(2) provides that if an impairment ceases to have a substantial adverse effect on a person's ability to carry out normal day-to-day activities, it is to be treated as continuing to have that effect if it is likely to recur.

The EAT considered that in considering whether an effect is "long term" the EJ had correctly referred to the following:

* the "long-term effect" question should be answered as at the date of the alleged disciplinary acts, not with the benefit of hindsight as at the date of the hearing: see Richmond Adult Community College v McDougall [2008] ICR 431 (except for cases where there is an impairment which has lasted for 12 months: see Patel v Oldham MBC; * "likely" means could well happen: see SCA Packaging Ltd v Boyle [2009] ICR 1056 (HL); * if medical treatment is likely to permanently cure the condition and therefore remove the impairment so that recurrence of its effects would then be unlikely even without further treatment, that should be taken into consideration when looking at the likelihood of recurrence (known as the "deduced effect"): see the Office for Disability Issues Guidance (dated 2011).

The narrow point taken by the Claimant in the appeal was that, having correctly directed herself as to the law, the EJ then failed to apply the prospective test when considering whether the effect of the Claimant's condition was likely to last at least 12 months (Schedule 1, paragraph 2(1)(b)), or was likely to recur (Schedule 1, paragraph 2(2)).

The medical evidence comprised a joint expert medical report (dated June 2013) and a previous Occupational Health report (dated May 2011). The first question was as to the relevant period under consideration. The EAT decided that the relevant period over which the "long-term question" fell to be answered prospectively was from May 2011 (when the Claimant returned to work for the second time) to August 2011 (when he was dismissed).

The EJ had accepted the Respondent's medical evidence that the danger of re-detachment was highest during the 3-4 month period post-detachment. That was borne out by the further episode experienced by the Claimant in his left eye in April 2011. However, once the 3-4 month danger period passed, the chance of a further detachment was only 2% after 12 months. That did not mean that it "could well" happen over the next 12 months - either it would happen within three to four months or, if not, it was highly unlikely to occur.

Therefore, the EAT decided, on any view of the factual matrix, the effect was not "long-term" and the appeal was dismissed.

Claimant's admission of disability
Did evidence warrant a finding of disability discrimination even though the Claimant had admitted she was not disabled? No, said the EAT in [The Department for Works and Pensions v Conyers]() UKEAT/0375/13/KN – a case under the Disability Discrimination Act 1995 ("DDA").

The Claimant had two periods of absence during the latter part of her employment. She had conceded in her witness statement and evidence that she was not a disabled person for the purposes of the DDA during the first period when she was off work due to "work-related stress". She was subsequently off work on the grounds of migraines/headaches and then with stress. She was dismissed in May 2010 on grounds of capability, having regard to her poor attendance record.

The Claimant brought proceedings alleging unfair dismissal and disability discrimination. She therefore needed to establish that she was disabled and sought to do so by reason of a mental impairment. The medical evidence was that the Claimant suffered from "Adjustment Disorder with Anxiety and Depressed Mood" during the first period of absence (November 2007 to April 2008). However, the medical expert concluded that "The nature and severity of mental health problems endured in the first period of sickness absence…does not fulfil the criteria of 'Disability' in accordance with the DDA Act".

In relation to the second period of absence (March 2009 until her dismissal), the medical expert was of the opinion that the Claimant "had a relapse" of DSM-IV 296.3.2, Major Depressive Disorder of moderate severity. However, he concluded that although by late 2009 the nature and severity of the mental impairment began to fulfil the criteria of "disability", it was short-lived. He said that the illness could not be deemed "long-term", but had the potential of recurrence and worsening if the Claimant returned to work with a particular line manager.

The EJ had asked three questions:

(1) Did the Claimant have a mental impairment? The ET's answer was yes (that finding was not the subject of any ground of appeal).

(2) If so, did that have a substantial adverse effect on her ability to carry out normal day-to-day activities? The EJ considered that the Claimant's own direct evidence was of most help in determining this and decided that "during the material period there were substantial effects".

(3) If it did have that effect, was it long-term? The EAT thought that on this issue the EJ's reasoning was not particularly easy to follow, but the EJ had decided that the impairment did have a long-term effect because the first episode had a substantial adverse effect and was likely to recur.

On that basis, as there was the likelihood of recurrence, the EJ found the Claimant was a disabled person during both periods of absence.

*Was there a substantial adverse effect?*
**It was argued by the Respondent on appeal that there was no evidence of substantial adverse effects in respect of the first period as the medical expert's report concluded that the Claimant's symptoms did not fulfil the criteria of disability. Further, the Claimant had herself accepted that this was the case in her witness statement. It was submitted that the EJ had confused evidence from the Claimant and the medical expert in respect of adverse effects in the second period with effects which had occurred in the first period.

In fact there was a significant difference between the parties as to whether the Claimant gave evidence to the EJ about substantial adverse effects which would justify a finding in relation to the first period. Therefore, given the inability of the parties to agree what evidence was given on the question of substantial adverse effect in the first period, the ET called for the EJ's notes for consideration at the appeal hearing.

The EAT pointed out that it was essential for the EJ to have made findings of fact as to whether the Claimant's mental impairment had a substantial adverse effect on her ability to carry out normal day-to-day activities during the first period. Without such findings there was no basis for concluding that she had a disability during that period.

The importance of a structured approach in making findings in disability cases has often been emphasised (see J v DLA Piper UK LLP. If the EJ had done so, he would have found that there was no evidence of any substantial adverse effect on day-to-day activities during the first period. It was not at all surprising that the medical expert had considered her not to be under a disability during this period or that the Claimant had conceded the point. It was not the law that every period of depression or anxiety in a person's life gave rise to "substantial adverse effects" or amounted to a period of disability.

On the evidence, the EJ's finding that "at all material times" the Claimant had a disability, had to be set aside. Logically, if there was no disability in the first period, the EJ's reasoning for finding that the Claimant was under a disability by reason of mental impairment during the second period could not stand – there could be no likelihood of a recurrence of a condition that was not present originally.

However, as it would still have been open to the EJ to find that the Claimant was for some or all of the second period a person with a disability, that issue had to be remitted for a re-hearing to consider whether this was so, and if so from what date.

Disability discrimination and misconduct
Where a Claimant had committed (and admitted) sexual assaults in the workplace because of his disability, could his dismissal for gross misconduct constitute disability discrimination? Possibly, said the EAT in [Burdett v Aviva Employment Services Ltd]() UKEAT/0439/13/JOJ.

The Claimant, was disabled within the meaning of section 6(1) EA, having been diagnosed as suffering from a paranoid schizophrenic illness. He was dismissed for gross misconduct after he admitted committing assaults in the workplace. He claimed both unfair dismissal and disability discrimination.

As to the claim of disability discrimination, the Respondent having conceded the dismissal had been unfavourable treatment "because of something arising in consequence" of the Claimant's disability, the question for the ET was whether dismissing the Claimant was a proportionate means of achieving a legitimate aim. The ET had decided that "…the Respondents [sic] in dismissing the Claimant needed to do so in order to achieve a very real and legitimate aim of adhering to appropriate standards of conduct in the workplace. It is self-evident that the appropriate standards of conduct are necessary to ensure the safety of the Respondents employees and represent and real and objective consideration". In relation to the question of proportionality, it was the ET's view that it was necessary for the Respondent to dismiss the Claimant.

It concluded that although the discriminatory effect of the Respondent's approach was significant, given the serious violations committed by the Claimant and the ongoing risk of further misconduct, it was plainly proportionate for the Respondent to dismiss the Claimant.

Was the dismissal proportionate?
Under section 15 of the EA:

"(1) A person (A) discriminates against a disabled person (B) if-

(a) A treats B unfavourably because of something arising in consequence of B's disability, and

(b) A cannot show that the treatment is a proportionate means of achieving a legitimate aim."

The Claimant submitted on appeal that the ET had failed to apply the correct test when assessing whether the Respondent had demonstrated its treatment of the Claimant (the dismissal) was a proportionate means of achieving a legitimate aim. It was argued that the ET had failed to carry out the required balancing exercise and took no account of the effect upon the Claimant.

Both parties relied on the guidance laid down in the Judgment of Pill LJ in Hardys and Hansons plc v Lax [2005] IRLR 726 when it was said that:

"… The employer does not have to demonstrate that no other proposal is possible. The employer has to show that the proposal … is justified objectively notwithstanding its discriminatory effect. The principle of proportionality requires the tribunal to take into account the reasonable needs of the business. But it has to make its own judgment, upon a fair and detailed analysis of the working practices and business considerations involved, as to whether the proposal is reasonably necessary."

The EAT pointed out that as the use of the term "objective" makes plain, whether or not a measure is justified in this sense will not depend upon the subjective belief of the employer. The test is not therefore whether the employer considered other alternatives at the time of implementing the measure in question; nor will an objective justification be undermined because the employer's consideration of the issue was inadequate or procedurally flawed.

In its guidance as to "What is proportionate", the Equality and Human Rights Commission's Code of Practice on Employment (2011) states:

"4.31 … EU law views treatment as proportionate if it is an 'appropriate and necessary' means of achieving a legitimate aim. But 'necessary' does not mean that the provision, criteria or practice is the only possible way of achieving the legitimate aim; it is sufficient that the same aim could not be achieved by less discriminatory means."

The Claimant's case was that the legitimate aim was the need to adhere "to appropriate standards of conduct in the workplace". But the ET's approach had then excluded any consideration of the Claimant's disability and it had failed to carry out the critical evaluation and balancing exercise required by section 15(1)(b). There was an obvious alternative to dismissal i.e. home-working. That possibility had not been considered by the ET (or by the employer).

The employer argued that it was for an ET to make its own assessment as to whether the reasonable needs of the employer outweighed the discriminatory effect of the measure. The ET had expressly rejected the possibility that the legitimate aim would be met by any sanction short of dismissal (including home-working).

The EAT referred to the ET's conclusion that there had been a legitimate aim because "appropriate standards of conduct are necessary to ensure the safety of the Respondent's employees …". The task of the ET was to scrutinise the means chosen by the Respondent as against such other alternatives that might have been available to achieve the aim in question. In so doing, it was required to weigh in the balance the discriminatory impact of the measure chosen against such other alternatives open to the employer.

The EAT thought that given the Claimant's evidence as to the effect of the dismissal on him (which included a suicide attempt), the ET's statement that "It is accepted that the discriminatory effect of the Respondent's approach is significant", was a "somewhat perfunctory" balancing exercise.

The ET's reasons did not actually engage with the Respondent's stated legitimate aim. As recorded by the ET, that aim was addressing the need to ensure the safety of its employees for the future. If so, the question was whether home-working would remove that risk. But the ET's focus appeared to have been on something rather different i.e. the Respondent's need to demonstrate that it was taking a serious approach to the Claimant's conduct and the impact that had had on other members of staff - an approach which was retributive rather than protective.

The EAT was unable to discern any engagement by the ET with the question of future risk in the context of some alternative option, such as home-working. Whilst that might not have entirely removed the risk, there was no indication that the ET had grappled with the question. Would it have been possible for the Claimant to carry out his duties from home? Would there still have been some need for him to come in to the workplace and would it be impossible to manage that to avoid future risk? Did the Respondent have a reasonable concern that this would send out the wrong message and/or in some way fail to address the concerns of those who had previously been assaulted by the Claimant? These were the kind of questions that the ET would have needed to consider (there may have been others). The ET's reasons did not evidence the answers to such questions. And there was no evidential basis for concluding that there was a risk of relapse even if the Claimant had continued taking his medication.

Therefore the ET's conclusions could not be upheld as safe and the appeal was allowed.

Reasonable adjustments
Under section 20(3) of the EA, there is a duty to make reasonable adjustments which includes:

"…a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

Was an employer in breach of a duty to make reasonable adjustments for the Claimant because it would have been a reasonable adjustment to disregard a final written warning? No, said the EAT in [General Dynamics Information Technology Ltd v Carranza]() UKEAT/0107/14/KN.

The Claimant was disabled within the meaning of the EA. He had had many lengthy periods of time off sick leading to a final written warning being issued. The warning (given in September 2011) was carefully crafted and included the facts that:

* the Claimant had been absent from work on account of sickness since March 2011; * his sickness absence has been managed in line with the employer's sickness policy; * he had failed to follow the policy on two occasions during his absence and management had to write to request medical certificates; * that his absence was severely impacting on the business unit; * his sickness absence had cost the Council in excess of £22,000; * reasonable adjustments had been put in place previously to allow for extra breaks, time off for medical appointments and possible adjusted targets; * although he was previously granted time off to go for South America for treatment, the Claimant did not go and did not subsequently make new travel arrangements whilst absent from work due to sickness; * his work was very much of a sedentary nature with no alternative duties; * he already had a written warning sanction for sickness absence; and * management had no concerns with his capability when at work.

The Claimant then had two short periods off sick and the employer did not take any action against him. However, he then had 3 months off sick when he injured his shoulder (which was unrelated to his disability) and was dismissed.

An ET upheld his claims of disability discrimination and unfair dismissal. The ET found that the employer had been in breach of a duty to make reasonable adjustments for the Claimant because it would have been a reasonable adjustment to disregard a final written warning. The PCP which applied was a requirement of consistent attendance and the Claimant was placed at a substantial disadvantage compared to non-disabled persons by virtue of that requirement.

Was there a breach of duty?
On appeal the employer argued that there was no basis for any finding of a failure to make a reasonable adjustment. The EAT agreed. The general approach to the duty to make adjustments under section 20(3) was very well known. The ET should identify:

(1)  the employer's PCP at issue;

(2)  the identity of the persons who are not disabled with whom comparison is made, and

(3)  the nature and extent of the substantial disadvantage suffered by the employee.

Without this information, the ET was in no position to find what, if any, step it would have been reasonable for the employer to take to avoid the disadvantage.

In the present case, the PCP was properly defined in terms of the basic requirement for consistent attendance, which was fundamentally the feature which caused the Claimant disadvantage. The majority of the ET did not expressly identify the "step" which it was reasonable for the Respondent to have to take. They thought that "it would have been a reasonable adjustment for the final written warning to be disregarded". The "step" therefore was to disregard the final written warning. The majority's reasoning for saying that the Respondent was required to take this step was that it had already disregarded the first two, short, disability-related absences.

The EAT disagreed. Firstly, the mental process of disregarding a final written warning was not a "step" for the purposes of section 20(3) of the EA. Whilst formally revoking a final written warning might be such a step, the mere mental process of disregarding a warning was quite different from the kind of step contemplated by section 20(3). Secondly, the fact that the Respondent had not dismissed the Claimant for two relatively short periods of absence following the final written warning, provided no basis for saying that disregarding the final written warning was a step which it was reasonable for the Respondent to have to taken. It would be remarkable and regrettable if an employer, by showing leniency to a disabled person in respect of some short periods of absence late in an absence management procedure, thereby became required by law to disregard all disability-related absence prior to that time whatever the impact on the business of doing so.

Therefore the majority finding by the ET of a failure to make reasonable adjustments could not stand. Even if the case had been put forward as a case of discrimination arising from disability, it would have been doomed to failure. It was legitimate for an employer to aim for consistent attendance at work and the carefully considered final written warning was plainly a proportionate means of achieving that legitimate aim. The dismissal after the Claimant's further very substantial absence was a proportionate means of achieving a legitimate aim and the contrary was unarguable.

Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.