Raising the bar in Disability Claims

A House of Lords judgment yesterday has made it much more difficult for employees to successfully make claims under the Disability Discrimination Act.

The case considered the meaning of the phrase in the Act that

"a person discriminates against a disabled person if - (a) for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply".

The House of Lords held that:-

• a person can only be liable for discrimination if they know that the individual is disabled.
• 'a reason which relates to the disabled person's disability' has to be interpreted narrowly.  So, for example, if an employer dismisses somebody for being off work sick for a year, then the reason is the absence from work, and not the disability that causes the absence and the dismissal would not be discriminatory.  This should be contrasted with, for example, a dismissal for slowness of a one-legged postman, which would clearly be a discriminatory dismissal.  Therefore the decision to dismiss does not fall under the Act.
• the correct comparator for the “would treat others” part of the section is an employee to whom the underlying reason (in the above example, absence for a year) does not apply; not a person who is not disabled.

It's a complicated decision and needs careful thought. But it is clear that the impact of this decision will be to make it much harder for an employee to succeed in a claim of disability discrimination.

As a note of caution however, you should still exercise extreme caution when dealing with disabled employees, particularly if you are considering dismissing those employees.  If in doubt please do take advice.

Remember!  A disabled employee does not require 12 months service in order to make a claim for unfair dismissal in any event.

If you require any further information about Disability Discrimination, please contact Emma Bramley of Follett Stock either by email at emma.bramley@follettstock.co.uk, or by telephone on 01872 245991 or any of the employment team on 01872 241700