Disability discrimination: SCA Packaging Limited v Boyle

Mrs Elizabeth Boyle suffered from vocal cord nodules causing hoarseness. In December 1991, she was advised to follow a regime designed to reduce stress on the throat and voice. She had surgery and began a routine that included sipping water throughout the day, refraining from raising her voice, and avoiding background noise. The nodules did not recur. However, in 2000, her employer removed a partition that separated her from a stock control room.

She subsequently brought a claim for disability discrimination against her employer, SCA Packaging Limited in a Northern Ireland industrial tribunal. SCA disputed whether Boyle was disabled for the purposes of the Disability Discrimination Act 1995 (DDA). Section 1(1) of the DDA states that a person has a disability if he/she has a physical or mental impairment that has a substantial and long-term effect on his/her ability to carry out normal day-to-day activities. Schedule 1 to the DDA supplements this by stating that an impairment which would be 'likely' to have a substantial adverse effect on the ability of the person concerned to carry out normal day-to-day activities, but for the fact that measures are being taken to treat or correct it, is to be treated as 'having that effect'.

Decision: The guidance on matters to be taken into account in determining questions relating to the definition of disability, which must be considered by a tribunal determining whether a person is disabled, states: "It is likely that an event will happen if it is more probable than not that it will happen". Applying this test, the tribunal found that the vocal nodules were 'likely' to recur if Boyle did not follow her voice management regime. However, the Northern Ireland Court of Appeal (NICA) took a different view, holding that 'likely' in the DDA context means that something 'could well happen', which is an easier threshold for a claimant to cross. NICA dismissed SCA's appeal. SCA then appealed to the House of Lords. It dismissed SCA's appeal unanimously. The House of Lords considered that 'likelihood' is a variable concept, and, having considered the purpose of the DDA, the House of Lords agreed with the NICA that the appropriate meaning of 'likely' in the Act is 'could well happen', which it considered to be a broader and less exacting test than 'more probable than not'.

Implications: This case concerned the so-called deemed effect provisions of the DDA by virtue of which a person who is not disabled will be treated as being disabled if they have an underlying impairment that would be a disability, but the effect of medical treatment or other corrective measures is such that they are able to function more normally. The word 'likely' also appears in other provisions in Schedule 1 to the DDA, and would now be interpreted in the same way. The effect of this decision is that it will be easier for claimants to establish that they are entitled to the protection conferred by the DDA, and employers will need to be more wary of how they treat employees with well-managed health problems. The House of Lords also disapproved of the Industrial Tribunal's decision to convene a preliminary hearing to decide whether Boyle was disabled, as in this case it contributed to delay. In many cases, the issue of whether an employer could reasonably be expected to make adjustments will involve the same evidence as determination of whether the employee is disabled.

The Legal Ruling on Medical Questionaires

Employers routinely ask job applicants to complete medical questionnaires but, until the recent case of Cheltenham Borough Council v Laird (2009 EWHC 1253), these have not been subject to much legal scrutiny. Laird was recruited as the council’s managing director in 2002. During a series of tortuous internal disputes, she became severely depressed. Eventually Laird stopped working and took an ill-health pension. The employer discovered that Laird had suffered previously from depression but had not mentioned this on her pre-employment medical questionnaire.

The council sued Laird for misrepresentation, claiming damages of almost £1 million.The council’s claim failed because the High Court found that Laird had not given misleading answers to the questionnaire, rather the questions were poorly drafted.

How should questionnaires be written?Questions should be carefully framed: for example, asking for the date when an applicant “last had medical treatment” and the reason for that treatment does not require the employee to say whether any medication is still being taken. Questions should not use medical definitions without explaining them. A “sweep-up” question should be included, such as: “Is there anything else in your medical history or circumstances that might affect our decision to offer you employment?”

What else should be included?Employers should explain why the information is needed, making it clear that they will rely on it when making recruitment decisions. Questionnaires should have a declaration for applicants to sign, confirming that the consequences of misrepresentation or non-disclosure may include termination of employment and a claim from the employer for damages. Applicants should also be required to give consent to their doctors being consulted and to the processing of their sensitive personal data.

Can I refuse to employ applicants who disclose a disability?The employer will need to show that not offering the job can be objectively justified and that no reasonable adjustments under the Disability Discrimination Act 1995 (DDA) could be made to accommodate the disability. In the Laird case, the employer said it would have concluded that such adjustments were not practicable, given her medical history and the demands of the role. But in many cases, refusing to offer a job because of disability will breach the DDA.

What happens if a disability is concealed?If a questionnaire has asked all the right questions but an applicant has concealed a disability, the employer could consider disciplinary action or dismissal on the grounds of dishonesty. The employee may try to counter this by saying that, if the disability had been disclosed, the employer could not have refused to offer the job under the DDA, so the non-disclosure made no difference. But even if the employer cannot show a refusal was justified, any damages claimed by the employer may be higher than compensation it might have had to pay the employee under the DDA.

Reasonable Adjustments and Disability Discrimination

The facts

In the recent case of Fareham College Corporation v Walters, the Employment Appeal Tribunal held that a dismissal can be an act of unlawful disability discrimination if the employer failed to make reasonable adjustments that could have avoided the dismissal.

Mrs Walters was employed by Fareham College as a lecturer in specialist computing. Her employment commenced on 3 June 2004.

The college had a 'managing absence policy', which encouraged employees to return to work and referred to the possibility of a phased return and the need, under the Disability Discrimination Act, to make reasonable adjustments. The policy also provided for the college principal to consider dismissal where sickness absence was envisaged to extend beyond nine months.

In 2004, Mrs Walters developed a condition known as plantar fasciitis, which caused pain in her feet and restricted her mobility. She went on sick leave for 28 days from 11 January 2005 due to her condition.

Mrs Walters was then absent for shorter periods of sickness in November and December and her GP wrote to the college in respect of her various health issues. Around this time, the college expressed concerns as to Mrs Walters’s performance and had invited her to a meeting on 31 January 2006 to investigate the matter. Mrs Walters expressed a number of health concerns at this meeting and went on further sick leave on 1 February 2006.

Mrs Walters was ultimately diagnosed with fibromyalgia. Following correspondence between the college and her GP and Mrs Walters’s second consolation with occupational health, it was determined that she might be able to consider a phased return to work in September 2006 but it was unlikely that she would be fit to return to her full role before the beginning of 2007.

Mrs Walters was eventually dismissed on 7 September 2006. She claimed unlawful disability discrimination prior to dismissal by the college refusing a phased return to work (failure to make reasonable adjustments) and disability-related discrimination pursuant to the dismissal.

The decision

The Employment Appeal Tribunal held that the college’s failure to make reasonable adjustments to facilitate Mrs Walters’s return to work rendered her dismissal an unfair act of disability discrimination.

The tribunal found that there were in fact other IT roles within the college for which Mrs Walters might have had suitable experience, in administration or supporting roles, but that these roles were not discussed with her.

Comment

This decision will mitigate the effect of the House of Lords' decision in London Borough of Lewisham v Malcolm. The effect of the Malcolm case was that a non-disabled comparator to whom a disabled claimant has to compare himself is not simply a non-disabled fellow employee, but rather a non-disabled fellow employee who is in the same situation.

The Malcolm case means that for a claim of disability discrimination to be successful, a disabled person dismissed following a lengthy period of sickness would need to show that a fellow non-disabled employee would not have been dismissed had they been away from the office for the same period of time. In other words the disabled person was treated differently. This is difficult for the claimant.

In Fareham College Corporation v Walters it was made clear that if, at the point at which the employer was considering dismissing the disabled employee, there was a reasonable adjustment which would have avoided the dismissal, the dismissal itself will be an unlawful act of disability discrimination. In this way, claimants do not need to rely solely on showing the comparator was treated differently and the problems posed by Malcolm in these situations can thereby be avoided.

Swine Flu symptom checker

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Worried about Swine Flu - who do you call?

Employees can call their G.P's to take advice on any aspects of Swine Flu, however there are dedicated numbers available to call and are as follows:

UK Swine Flu Information Line:0800 1513 513
England and Wales NHS Direct:0845 4647
Scotland NHS 24:0845 4 24 24 24
Northern Ireland Swine Flu Helpline:0800 0514 142

National Pandemic Flu Service goes live on Thursday

We are pleased to announce that the National Pandemic Flu service goes live on Thursday 24th July 2009. The centre will have over 2,000 operatives who you can call giving advice and guidance over any aspects of suspected swine flu.

New Swine Flu Service goes live next week

As swine flu rises and employers are faced with the huge challenge of managing and harnessing the outbreak further help is now at hand. The NHS launches its flu service which goes live next week. This will be a central call centre manned by 2,000 call staff at anyone time where employees and employers alike can seek advice.

Services provided will be:
1. They will use a checklist to diagnose whether the person calling has swine flu and will be able to give them a voucher number to get anti-viral drugs if they are believed to be infected
2.The public will also be able to use a website to fill in the checklist as well and get access to the voucher number that way
3.People will still be able to go direct to GPs and the under ones and those with underlying health conditions should still contact a doctor if swine flu is suspected
4.The number of staff will be increased if necessary and there are plans to roll it out across the UK if necessary

Extra days sick leave being introduced to containe swine flu

Employees will be allowed to authorise their own sick leave for as much as two weeks if government proposals to contain the swine flu pandemic go ahead Personnel Today reports.

The Department of Health (DoH) is "actively considering" doubling the amount of time staff sign themselves off sick from work from seven to 14 days so the employees do not need to get a doctor's note.

But employers' groups have warned employees could abuse the system and see the changes as a freedom pass to taking two weeks off work with relatively little consequences.The proposals are being considered by government departments, including the DoH. If they are put in place, they are likely to be in force for a six-month period only. But employers are unlikely to be consulted on the changes because they will come in as an emergency measure, an industry insider has revealed. Nor will the changes require a new law, so could be implemented immediately.

There is also the added complication of quarantine periods, so as well as staff taking two weeks off, they could take an extra five days for that reason. So far 7,447 UK cases of swine flu have been confirmed since April 2009, according to the latest DoH figures. However, the newest cases are no longer being measured.

CBI unveils its ATR scheme

Employers' body the Confederation of British Industry will today( 6th July 2009) unveil plans to revolutionise employment rights by introducing an "alternative to redundancy" (ATR) scheme to get workers to stay at home in return for £128 a week.
The body has already briefed the government on the proposed scheme which would allow employers to place employees on an ATR register for up to six months.
During this period workers' contracts would be effectively frozen and they would receive the equivalent of job seekers' allowance, currently £64.30 a week for the over-25s, from the government, topped up by the same amount from the employer.
But the affected employees would not be eligible for other support, such as Housing Benefit and Council Tax bene- fit, typically received by the formally unemployed.
Crucially, during this period the employer could decide to make the workers redundant with just four weeks' notice no matter their contractual notice period.
There would also be an incentive for a worker to seek other work if they are only receiving the equivalent of a £6687 annual salary, thus freeing the employer from making redundancy payments.
CBI deputy director-general John Cridland said the measures were intended to soften the impending rise in joblessness and allow com-panies to retain skilled staff so they could participate in the later economic upturn.
"It is a scheme designed for people who frankly have reached the end of the road unless things improve very rapidly.
"It should avoid short periods of unemployment. The worst thing I think is when a business needs to let somebody go because they have run out of cash and then recruits them again three months later."
He added: "It is not revoking (workers') employment rights. They will get their redundancy if that is the stage things reach. It is suspending the employment contract."
The CBI envisages that employees will be offered ATR as an alternative to standard redundancy proceedings.
The plan would require legal changes because it involves the suspension of employment contracts and the CBI believes it would need to be implemented by the autumn to have an impact before unemployment is expected to peak in the second quarter of next year.
But unions are sceptical. Trades Union Congress general secretary Brendan Barber said: "There will be worries about whether employees who took up this option could end up losing redundancy rights and the big cut in income they will face, without any cushioning redundancy pay for the first six months.
"It is also better to keep people in work and training with their employer even if on short-term working, rather than sitting at home, which is why unions and other employer groups are campaigning for the kind of wage subsidies that are now common in the rest of Europe."
The CBI says the UK Government cannot afford wage subsidies and they are hard to direct at viable companies.
On top of the ATR plan, the group also wants the consultation period for orthodox redundancy proceedings cut from the current 90 days for those employers with more than 100 staff.
But Barber said "The 90-day period provides the opportunity to explore alternatives to redundancy and can both help keep workers in jobs and make businesses better prepared for an upturn."
The CBI made a further call for a pull-back in employment regulations which it claimed had cost businesses an additional £73bn since 1998.
Among the measures it highlighted for potential cost-cutting were maternity leave regulations, the right to request flexible working and the national minimum wage.
Barber said: "People are losing their jobs not because they have gained some modest rights in recent years, but because we are going through a deep recession caused by a breakdown in the financial system caused by out-of- control banks."
The CBI was unable to confirm what impact its plans might have on unemployment levels.
Cridland said: "We do not make claims that this would have a huge impact on unemployment numbers but I think it could be key to particular groups of workers in particular businesses."