Arwen Makin, senior solicitor at ESP Law, reviews case law related to ‘long term’ disabilities, the impact of disability on conduct and long-term disability benefits
Although most employers endeavour to support employees with disabilities as best they can, disability can be a very tricky area to navigate. One of the most common difficulties is understanding just how far your obligations as an employer should go, because each individual’s circumstances and conditions are different. Here, we examine some recent case law to try to shed light on especially challenging areas, and to give some practical advice about navigating disability in the workplace in an appropriate way. If you are in any doubt as to the best course of action, seek legal advice to avoid costly mistakes.
How ‘long term’ must a condition be to qualify as a disability?
In Nissa v Waverly Education Foundation, a case involving a science teacher who suffered from fibromyalgia, the often pivotal question of whether the disability in question was ‘long term’ enough to qualify under the Equality Act was considered, and general principles revisited. Mrs Nissa had been suffering with symptoms since December 2015 until her resignation in August 2016, meaning her condition had been present – but undiagnosed – for approximately eight months when she resigned. She was formally diagnosed in August 2016 and in October 2016 received medical advice that, with rest, her condition may improve.
The first employment tribunal considered that, due to the medical advice that her symptoms might slowly improve, it could not be said that it was “likely” that the effects would be long term (the current advice from case law, found in the case of SCA Packaging Ltd v Boyle). Mrs Nissa’s claim failed.
She appealed and the Employment Appeal Tribunal (EAT) confirmed that the tribunal had been too narrow in its consideration of this issue. The EAT confirmed that while “likely” was the correct approach, the interpretation of this word meant that it should be asked whether “it could well happen”. The tribunal in Nissa had focused on the question of the diagnosis rather than the effects of the impairment before diagnosis and had adopted too narrow an approach. The EAT said the original tribunal had considered the position with the benefit of hindsight (the medical advice in October being after the resignation), whereas it should have focused on the position while the clamant was still employed.
The case of Martin v University of Exeter also provides useful guidance. In this case, the claimant suffered from post-traumatic stress disorder (PTSD) and it was accepted that this was causing a significant impairment. But, again, it was the long-term nature of the impairment that was called into question, and the situation as it is at the time of the complaint – rather than with the benefit of hindsight.
In this case, by the time there was a preliminary hearing to address the issue of disability in the employment tribunal, a year had passed. However, it was held that it is not enough for a claimant to show that the effect of their impairment had now lasted for a year, there should have been medical evidence which showed that, at the time of the treatment complained of, the impairment was “likely” to be long term. Again it was confirmed that the test in SCA Packaging v Boyle was the correct test to use, and that “likely” meant “could well happen”.
Both of these cases illustrate the importance of obtaining medical evidence at the time of the complaint – for claimants and respondents alike – and that if you are in any doubt about if a condition could be long term, the bar is fairly low with the “could well happen” interpretation.
Side effects of disability and conduct
Unfortunately some disabilities can cause undesirable side effects that can lead to misconduct. Employers are, quite rightly, wary of dealing with such misconduct. They are absolutely right to consider that “but for” the disability, the alleged misconduct might not have taken place. This is particularly the case with some degenerative illnesses that can cases changes of personality, and certain mental health conditions.
The case of Wood v Durham County Council examined whether it was right to dismiss a disability discrimination claim on the ground that a manifestation of the claimant’s disorder (PTSD and dissociative amnesia) was the tendency to steal, which is an expressly excluded condition of Regulation 4(1)(b) of the Equality Act (Disability) Regulations 2010.
Mr Wood worked in a position of trust for the council. His disability was not in dispute, and it was accepted that it caused a tendency to steal. He was issued with a fixed-penalty notice by the police for a minor theft from high-street chemist Boots. The council dismissed him after an investigation and Mr Wood brought a claim for disability discrimination, because he argued that the incident was “arising from” his disability.
At the tribunal hearing, the council relied on the argument that, because a tendency to steal is an excluded condition, and that this was the sole reason for the dismissal, the claim must fail. The tribunal agreed and the EAT affirmed the decision.
The conditions excluded under the Regulations are:
- A tendency to set fires
- A tendency to steal
- A tendency to physical or sexual abuse of other persons
Unfavourable treatment must be linked to actual disability – not a mistaken belief
iForce v Wood is a useful case that illustrates for employers the importance of research and that taking additional steps to really explore a situation, while cumbersome at the time, can possibly help in the long run.
Mrs Wood was a packer who worked at a fixed workstation. She was asked to move location and refused, explaining that moving to an area nearer the doors would worsen her osteoarthritis, which was exacerbated by damp and cold environments. Her refusal to move resulted in her being issued with a warning. She brought a claim for a section 15 unfavourable treatment arising in consequence of disability. Initially she was successful but this was overturned by the EAT.
The EAT found that the employer had taken temperature and moisture readings at the two workstations, and found that the readings were indistinguishable. Although Mrs Wood believed what she was saying was correct, the EAT found there was in fact no connection between the employer’s treatment and disability, because her belief was mistaken. There could therefore be no unfavourable treatment arising from a misplaced perception that was not established on the facts. The employer’s careful research won them the case.
Long-term disability benefits
Finally, we have a case regarding employees with disabilities who receive long-term disability benefits – one that is a salient reminder to treat these benefits with the utmost respect, because failing to do so can not only give rise to a claim, it can result in an extremely high-value claim.
In the case of ICTS Limited v Visram, the claimant had the benefit of an insurance-based ill-health benefit, while employed, until his “return to work”. ICTS dismissed him for incapacity after a period of absence with work-related stress and depression. ICTS was unsuccessful in defending Mr Visram’s claims for unfair dismissal and disability discrimination and the tribunal considered remedy. The benefits that he would have continued to have enjoyed were considered to be particularly relevant.
The respondent sought to argue that “return to work” could mean the claimant being fit to return to any nature of job with any employer. The tribunal disagreed, deciding that “return to work” meant return to the work from which he had taken sick leave. On the facts, it was clear that there was no prospect of the claimant ever returning the role. As such, his claim would succeed for the loss of his long-term disability benefits until his death or retirement – resulting in a costly lesson for ICTS. Employers should always ensure that every angle of an employee’s insurances and benefits are considered before taking any action, particularly in relation to a disabled employee who is receiving long-term disability benefits.
Arwen Makin is a senior solicitor at ESP Law Ltd. This post was powered by esphr – a CIPHR strategic partner. Talk to a very different employment law firm and HR business partner on 0333 006 2929 or find out more at esphr.co.uk