Disability is a protected characteristic under the Equality Act 2010 (‘EqA’). Disability is defined in the EqA as a person having “a physical or mental impairment that has a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities.” Schedule 1 of the Act explains that “long-term” means likely to last for at least 12 months.
This recent case provides an excellent analysis of the three main issues which can arise from disability in the workplace: the duty to make reasonable adjustments (s20 & 21), disability discrimination (s15), and harassment (s26). Sections 39/40 provide that an employer must not discriminate against or harass an employee, and must make reasonable adjustments. Before addressing the facts of the case, it is useful to remind ourselves of what the EqA says about each of these issues.
The relevant law – the Equality Act 2010
Disability discrimination – s15 EqA
This section states that an employer discriminates against a disabled employee if the employee is treated unfavourably by the employer because of something arising in consequence of the employee’s disability. The employer must be aware (or must reasonably have been expected to be aware) of the disability. They will also have a defence if it can show that the treatment was a proportionate means of achieving a legitimate aim.
Harassment – s26 EqA
Harassment is defined, in relation to disability, as a person (A) harassing another (B) if A engages in unwanted conduct related to the disability, and the conduct violates B’s dignity or creates an intimidating, hostile, degrading, humiliating, or offensive environment for B. Things that must be taken into account include B’s perception, the other circumstances, and what is reasonable in terms of the effect of the conduct.
Reasonable adjustments – s20(3) EqA
An employer is required to make reasonable adjustments where a provision, criterion, or practice (‘PCP’) puts a disabled person at a substantial disadvantage in comparison with those who are not disabled. Substantial is defined as “more than minor or trivial” later in the EqA. The Claimant bears the burden of proof in proving each PCP’s disadvantage in comparison to a non-disabled colleague.
The Claimant, Mrs Evans had experienced episodes of anxiety disorder, social phobia, and depression since 1999, on and off. She joined the Respondent as an Accounts Receivable Specialist in 2012, with a Ms Lewis as her team leader. She didn’t inform the Respondent of her disability at the time of her interview.
In early 2013, the Claimant began experiencing a major episode of depression, and was often seen by Ms Lewis to be in tears at her desk. She took time off later in 2013 with anxiety. On her return, she wasn’t referred to occupational health, and her workload was increased until it was one of the busiest on her team, despite her being part-time.
2014 saw another negative performance review, and the Claimant being told she was to be placed on a Performance Improvement Plan (PIP) by Ms Lewis. Ms Lewis did not in fact follow up on that, and it was later found that she had merely used it as a threat to the Claimant. Ms Lewis did not in fact follow up on that, and it was later found that she had merely used it as a threat to the Claimant. The build-up of all of the stress led to the Claimant being hospitalised in September 2014.
In 2015, a new monitoring tool was introduced, which the Claimant explained to Ms Lewis she felt put pressure on the whole team, but that she in particular found it difficult to cope with. Ms Lewis informed the Claimant that she needed to cope better with her anxiety. By 2016, the Claimant felt, and even said to Ms Lewis, that she felt she was being treated differently to the rest of the team. Ms Lewis stated that “we’re all feeling the pressure”, and informed the Claimant that while she was off, others had to deal with her workload.
The Claimant raised a grievance, which upheld the Claimant’s complaint against Ms Lewis. However, following this grievance process, there was a delay in referring the Claimant to any Employee Assistance or Group Income Protection procedures by Ms Smith. Also, despite occupational health directions that the Claimant should be redeployed, the Claimant was put under pressure to return to her previous role. These events all led the Claimant to raise a second grievance. This grievance process concluded that there had been no harassment by Ms Smith, and although there had been a delay, it hadn’t impacted the outcome.
Following this second grievance, the Claimant’s HR contact informed her that depending on the outcome of a review, they might need to consider whether, as a result of her current ill-health she was able to continue in employment. The Claimant raised a third grievance, on the basis that the HR contact hadn’t informed her of opportunities for redeployment and had threatened to terminate her employment. This grievance was not upheld.
The tribunal concluded that the Respondent knew about Ms Evans’ disability. Of the 22 items which the Claimant alleged in the Schedule, the Tribunal concluded that she succeeded in 8 of those. They were:
- Not referring to occupational health (reasonable adjustment) – adopting a practice of non-referral was a failure to make reasonable adjustments for the Claimant.
- Comments relating to anxiety (harassment) – unwanted conduct in relation to disability.
- Anxiety comments (discrimination) – this amounted to unfavourable treatment as a consequence of the disability.
- ‘Others covering your workload’ comments (harassment) – unwanted behaviour whose purpose was to create a hostile environment.
- Requiring a certain workload (reasonable adjustments)
- Repeated suggestions for reconciliation with Ms Lewis (discrimination) – unfavourable treatment as a result of her long-term time off, therefore as a result of her disability.
- Instituting formal absence management (discrimination) – unfavourable treatment as a result of the Claimant’s ill-health, and therefore as a result of the disability.