Workplace Disability Discrimination

Posted on December 24, 2019

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WORKPLACE DISABILITY DISCRIMINATION: NEW GUIDANCE PENDING

Manx Advocate John Aycock and English Barrister Nicholas Siddall QC review the introduction of disability discrimination into Manx labour law

The second major protected characteristic being introduced into the workplace at the start of 2020 relates to outlawing discrimination against those who suffer from a disability. The other major protected characteristic being enlivened at the same time is age discrimination (see Business News 19 November 2019). The disability provisions build on those established by the Disability Discrimination Act 2006 which covered goods and services but not disability issues in the employment sphere.

The Equality Act 2017 is fully operative from 1 January 2020 when employers will be obliged to manage their businesses in a way that ensures those employees suffering from a disability are not treated any less favourably. A series of specific rights arise in the context of disability. In addition to the traditional prohibitions of direct and indirect discrimination, employers are not permitted to treat employees unfavourably as a result of something which arises from their disability (subject to justification) and employers have an additional duty to make reasonable adjustments.

Because this protected characteristic involves a wide range of considerations, the Government is in the process of drawing up guidelines and a Code of Practice. Essentially, there are two major considerations for employers, namely what exactly constitutes a disability and how does an employer deal with its obligations to ensure the absence of discrimination. Disability, unlike age, is a much more fluid concept and encompasses a series of limitations which may not readily be perceived as amounting to a disability.

For that reason Tynwald is providing guidance on questions relating to the definition of disability. There is also substantial existing guidance from English case law as to the scope of the duty to make “reasonable adjustments”. This obligation governs how employers should ensure those suffering from disability are not unreasonably disadvantaged in the workplace.

There is therefore much work going on behind the scenes to bring Manx regulations and guidance into operation. The following documents are in various stages of preparation:

  1. Equality Act 2017 (Disability) Regulations 2019 (mirroring UK Equality Act 2010 (Disability) Regulations 2010);

  2. Equality Act 2017 Code of Practice on Employment;

  3. Equality Act 2017 Guidance on matters to be taken into account in determining questions relating to the definition of disability to be laid before the January 2020 Tynwald (currently out for consultation);

  4. Equality Act 2017 Code of Practice on Services – scheduled for consultation and to be laid before the February 2020 Tynwald.

The disability protection extends to those who 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. The Equality Act itself identifies certain types of cancer, visual impairments, progressive conditions (e.g. arthritis), multiple sclerosis, HIV infection and severe, long term disfigurement as amounting to a disability but this is far from a definitive list. It is therefore necessarily difficult to set precise parameters for what conditions are and are not covered by the general statutory definition of disability. Even in England, where the legislation has been in place for much longer, the category of conditions satisfying the disability definition remains flexible as each case is determined on its merits. For instance, conditions such as obesity and work-related stress are dealt with by Employment Tribunals as being capable of amounting to a disability (for example where obesity restricts mobility). Island employers will need to be prepared for the fact that ostensibly non-disabled persons may be found to satisfy the definition of disability.

Guidance in England also helps in relation to what type of reasonable adjustments might be appropriate. Some examples include:

  • Changing the recruitment process so a candidate with disability can be considered for a job.
  • Flexibility as to desk arrangements, such as allowing someone with social anxiety disorder to have their own desk instead of hot-desking.
  • Making physical changes to the workplace, like installing a ramp for a wheelchair user or an audio-visual fire alarm for those with hearing issues.
  • Facilitating access to ensure ease of entry for workers with disability.
  • Obtaining specialist equipment, for instance providing a special keyboard if they have arthritis.
  • Allowing employees who become disabled to make a phased return to work, including flexible hours or part-time working.

To assist those with disability seeking employment, the Department of Economic Development presently operate grants and non-financial assistance in respect of disabled employees, details are contained in the Employment (Persons with Disabilities etc.) Scheme 1999.

Nicholas Siddall QC of Littleton Chambers in London has extensive experience of dealing with disability related claims in the workplace. He gives a few pointers as to how England and Wales dealt with the introduction of this law and what Isle of Man employers might pressingly need to do upon enlivenment of this part of the Equality Act 2017.

The arrival of disability protection on the Island is likely to represent the most seismic effect of the enactment of the Equality Act. The UK experience has shown that three key areas are seen to exist. They are:

  1. Whether a person is disabled at all and the employer’s knowledge of that fact;
  2. The scope of the duty to make reasonable judgments;
  3. The elusive concept of discrimination arising from disability.

None of the above topics is sufficiently susceptible to full summary within the confines of this article but examples of the sorts of issues which are likely to arise are:

  1. Disability

A likely battleground will be in the context of mental impairments where employees will assert that they suffer from a medicated condition which amounts to a disability. It will be instructive to see if the Manx Employment and Equality Tribunal follows the UK example of viewing such assertions with some scepticism and requiring medical evidence in support of the same. Further, certain types of disability discrimination do not require actual knowledge of the disability on the part of the employer and it is a matter of conjecture whether the Manx Tribunal will adopt a similar approach to constructive knowledge (i.e. the employer should have known) to that seen in the UK.

  1. Reasonable Adjustments

The introduction of this duty shall require a sea-change in the approach of Island employers. Previously an employer was permitted to require that for example a job would be performed in a certain manner and in a certain location. Now they will be required to consider if such requirements place an employee at substantial (which here means more than trivial) disadvantage by reason of their disability. If so, then the employer will be required to make reasonable adjustments to avoid or limit the scope of the impact. This requires a careful balancing exercise between the needs of the employer’s business and those of the employee.

Discrimination Arising from a Disability

This concept addresses a limitation which is not the disability but is linked to it. Thus under the old law the dismissal of an employee for foul language was unlikely to present any challenging issues of law. However if for example the employee were now to demonstrate that their foul language was a result of their suffering from Tourette’s syndrome any dismissal of the employee would be required to be justified as a proportionate means of achieving a legitimate aim.

Advocate John T Aycock is head of the Employment Unit at M&P Legal, Douglas. Nicholas Siddall QC practises at Littleton Chambers, London

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