Disability discrimination Flashcards
Fag of Arbejde (Kaltoft)
Claimant argued because they were obese. they had not been given a job.
Court: disability is not directly a discrimination, but obesity can cause other health issues that may result in discrimination if that person is treated less favourably. The origin of the disability is irrelevant.
Archibald v Fife Council
The adjustments should be reasonable (does not mean any adjustment). it is objective. An employee became a road sweeper and was employed by the council. because of a back condition, she cannot walk and becomes an issue. she is no longer fit. they retrain her for office work and they agree to shortlist her and interview her for every office job. but, the interview is competitive. She is always up against candidates with office experience and thus Never gets the job. After she cannot get 100 jobs, they dismiss her.
House of Lords: disability discrimination was present here. Reasonable adjustments might extend to giving her a job without a competitive process because she is more likely to lose.
Baroness Hale in Fife
DD legislation does not reward the differences between those with a disability and those who do not have one as irrelevant. it respects reasonable adjustments to be made to cater for the special needs of disabled people. it necessarily entails a degree of more favourable treatment. The employer is obliged, not permitted to treat the disabled person more favourably.
Cordell v Foreign and Commonwealth Office
C was a senior diplomat. she was deaf. she required services of a lip-speaker to carry out her job. applied for a posting in Kazakhstan. The employers took the view she could not have It because the provision would be extremely expensive (300,000 per year)
Lip-speaker
someone who speaks in a way that is clear and easy for a lipreader to understand and follow. they interpret what other people say and the lipspeaker reads it.
Underhill J on Cordell
Sets out where an adjustment is or is not reasonable
- cost is relevant: on that, it is in truth one of the simple considerations on the assessment of reasonableness. how much things cost becomes a relevant factor.
- there is no objective measure that can be used to balance what are in truth two types of considerations that are different.
- what level of cost is reasonable, including the size and resources of the employer.
- what an employer might spend on other unrelated matters is not relevant.
- the fact the employer could afford it does not mean it should afford it.
- it was a matter for the tribunal. whilst they should not “stick a finger in the air” they must make a judgment.
SCA Packaging v Boyle
Lady Hale: a blind person who can get about with a guide dog is still disabled. a person with Parkinson’s whose disabling symptoms are controlled by medication is still disabled. an amputee with an artificial limb is still disabled.
Linsley v Revenue and Customs Commissioners
A woman claimed that an employers failure to give her a special parking space was disability discrimination. this was rejected as they had made reasonable adjustments to cater for her condition.HMRC had failed to follow their own car parking policy, but this was discretionary and so cannot be relied upon. Employers must focus on the specific advantage to employees when considering adjustments. if the employer has a policy, this should be followed, unless there are persuasive reasons for not doing so.
Pousson v BT Communications plc
Pousson was employed and known to be an insulin dependent diabetic. He struggled to fulfil the criteria of his job due to his condition. They adjusted his shift pattern but made no other adjustments. colleagues complained about him taking blood at his desk. He fell and suffered a head injury. He did not return and his employment was terminated.
ET in Pousson
Upheld his complaint. Subjecting him to an improvement plan and allowing complaints from other workers was treating him less favourably. The failures they made were described as ‘inexcusable’ for such a large organisation.
Abbey v National plc
A became a customer service advisor which was stressful and led to a recurrence of her IBS. The management did not allow her access to the toilet or to have a drink. she was eventually dismissed. The tribunal stated that IBS was a disability because it was long term and had a substantial adverse affect. the dismissal was because of her disability and she had been treated less favourably compared to other employers.
Mr C
Mr C had a longstanding medical history including issues with his back, anxiety and depression. He was on leave and his entitlement to sick pay stopped. It looked unlikely he would be able to return to work due to his medical conditions. He was accused of falsifying his health records and was dismissed.
Outcome: awarded 110,000 at a settlement agreement
Ishola v TfL
Useful case on what type of employer conduct can give rise to a PCP. a course of conduct that is detrimental to one person due to a protected characteristic can give rise to a claim for direct discrimination.
Taylor v Jaguar Land Rover Ltd
Whether the claimant had a PC on the basis of gender reassignment which applies when “the person is undergoing or has undergone a process (or part of a process) for the purpose of reassigning the person’s sex by changing the physiological or other attributes of sex”
Held: fell outside the criteria of PC because she had at time referred to herself as non binary. However, the tribunal held that she was on a journey of transition. How she described herself at any given time did not alter this position. The gender reassignment category applies to anyone regardless of whether they have undergone medical treatment or not.
Hill v Lloyds Bank Plc
What does reasonable adjustment look like in practice? This shows that employers should remove a disabled people where they experience bullying that results in depression. If impractical, they should offer an enhanced severance package.
EAT: employee claimed she was in a constant state of fear and distress, and therefore was not in the same position as her other colleagues.
