Disability Equality

The legal position

What the law says:
The Equality Act 2010 (EqA) defines disability as a physical
or mental impairment that has a substantial and long term
adverse effect on someone’s ability to carry out normal daily
activities. The definition includes people with hidden
disabilities (such as diabetes, epilepsy, mental health), in
particular because when considering the impact of someone’s
impairment you have to disregard the effect of any treatment,
and progressive and recurring conditions. It also covers past
disabilities. People with cancer, HIV and MS are
automatically covered by the Act. The definition is a very
broad one potentially covering many millions of people,
although it is important to note that many of those who are
protected by the EqA are not aware that they are, and do not
necessarily consider themselves to be disabled. This can raise
issues of disclosure that are considered later in this guidance.
The law specifies the forms of discrimination that are
outlawed:
• Direct discrimination: that is, less favourable treatment
because of disability, compared to someone whose
circumstances excluding the disability are otherwise
comparable. Such discrimination cannot be justified by the
employer.
• Discrimination arising from disability: that is, treating
someone less favourably because of something arising in
consequence of a person’s disability. Such discrimination is
capable of legal justification by the employer if the
treatment is a proportionate means of achieving a legitimate
aim. In addition, there will be no discrimination if the
employer shows that it did not know, and could not
reasonably have been expected to know, that the person had Trades Union Congress Sickness Absence and Disability Discrimination 7
the disability. This is a very broad type of discrimination.
• Indirect discrimination: this type of discrimination happens
when an employer applies a provision criterion or practice
which puts or would put people with a different disability at
a particular disadvantage compared to people who share the
disabled person’s disability; it is applied to the disabled
person; and the employer cannot show that it is a
proportionate means of achieving a legitimate aim. This
type of discrimination has never previously applied to
disability. It is aimed at tackling group disadvantage, and
can be used to tackle policies and practices that are
inadvertently detrimental – which may include sickness
absence policies. There is no knowledge requirement for
indirect discrimination.
• Failure to make a Reasonable Adjustment. This is one of the
key components of the disability provisions of the EqA. An
employer is under a legal obligation to make reasonable
adjustments to enable a disabled person to work or continue
to work. There can be no justification for a failure to make
a reasonable adjustment, but an employer is allowed to
argue that an adjustment is not “reasonable”. There is a
wide range of possible adjustments, including changes to
physical aspects of premises and changes in someone’s work
duties.
The DDA contained within it a list of possible adjustments
that an employer might have to make. The EqA does not
contain such a list, but the Employment Code of Practice
which the Equality and Human Rights Commission has
published to provide guidance for employers, employees and
tribunals in how the provisions work does provide a list of
possible adjustments. These include disability leave. The
example given in the code of this is as follows:
Example: A worker who has cancer needs to undergo
treatment and rehabilitation. His employer allows a period of
disability leave and permits him to return to his job at the end
of this period.

Sickness absence: the case law
The lawfulness of treatment by employers of disabled workers
who have taken a period of absence that has triggered
sickness absence procedures has been tested in a number of
cases. These are all under the DDA but they will still be
relevant to cases under the EqA. We set out below how the
EqA might affect sickness absence.
In the case of Cox v. Post Office (case no. 1301162/97) an
Employment Tribunal found that the employer, a large
organisation, could reasonably cope with the claimant’s
absences for reasons of asthma and that therefore these
disability-related absences should be disregarded, as a
reasonable adjustment. This approach was then followed in a
number of subsequent tribunal rulings.
In the case of Pousson v. British Telecom plc (2005 1 All
ER(D) 34 (Aug) EAT), the claimant, who had diabetes, had a
number of absences due to infections related to his condition,
and the employer’s Occupational Health department had
confirmed the connection. The employer had invoked their
computer-based attendance procedures four times over two
years, and as a result of enforcing these procedures the
claimant had left work following an accident after he was not
permitted to leave his desk to administer his medication. The
Employment Tribunal found that the attendance procedure
should not have been applied because the claimant was Trades Union Congress Sickness Absence and Disability Discrimination 9
disabled, and that this amounted to less favourable treatment.
The employer’s appeal against this finding was dismissed.
However, another judgment was less favourable. The
Employment Appeal Tribunal in the case of Royal Liverpool
Children’s NHS Trust v. Dunsby (2006 IRLR 351)
overturned a tribunal finding of disability-related less
favourable treatment where the worker had been dismissed
using the sickness absence procedure. The higher court said
that the DDA does not impose an absolute obligation on the
employer not to dismiss someone whose absence is wholly or
in part on grounds of ill-health due to disability; it requires
only that the dismissal is justified. The ruling continued:
“…it is rare for a sickness absence procedure to require
disability related absences to be disregarded. An employer
may take into account disability related absences in operating
a sickness absence procedure. Whether by doing so he treats
an employee less favourably and acts unlawfully will generally
depend on whether he is justified or not…”
It has been pointed out by legal commentators that this was
an unusual case, because it did not touch upon the question of
whether or not the employer had considered a reasonable
adjustment, which would normally in this kind of situation
have been precisely to consider disability-related absence
separately from sickness absence. However, the actual
approach adopted by the employer in this case can be
considered representative of the approach adopted by large
numbers of employers over the years, and currently, and the
EAT ruling here makes it more difficult to consider
challenging it legally.
Following a case called London Borough of Lewisham v
Malcolm, the scope for disability related discrimination under
the DDA became very narrow and in particular that there was
only less favourable treatment in a sickness absence case if
someone without that disability but with the same amount of
time off work would not have been dismissed.
Discrimination arising from disability, set out above, was
introduced to the EqA to remedy the effects of Malcolm. It Trades Union Congress Sickness Absence and Disability Discrimination 10
means that if you are dismissed because of the fact that you
have had time off sick – that is as a consequence of your
disability – and your employer knows, or ought reasonably to
be expected to know that you have that disability, your
employer will have to justify your treatment (on the basis that
it is a proportionate means of achieving a legitimate aim). If
your employer cannot justify the treatment, it will amount to
discrimination arising from disability. One of the things that
will be taken into account in determining whether or not the
treatment can be justified is whether, for example, there are
any reasonable adjustments that you

The Code of Practice
The Equality and Human Rights Commission’s Code of
Practice on Employment does not have legal force. It must be
taken into account by courts and tribunals where relevant,
but it does not itself have the force of law. Nonetheless, what
it says in this area can be cited as a valuable addition to a
union’s representations in negotiations. That is why the
relevant words are quoted verbatim in this section. The Code
was written to provide a plain language guide to the meaning
of the EqA, and it reinforces this by offering hypothetical
examples to show its practical application. These examples
can be particularly helpful if they use a situation comparable
to that faced by the union representative.
The Code of Practice states (at paragraph 6.33), as an
example of a reasonable adjustment:
• “Allowing the person to be absent during working
hours or training hours for rehabilitation, assessment or
treatment…
Example:
An employer allows a person who has become disabled more
time off work than would be allowed to non-disabled workers
to enable him to have rehabilitation training. A similar
adjustment may be appropriate if a disability worsens or if a
disabled person needs occasional treatment anyway.”1
.
• “Allowing a disabled worker to take a period of
disability leave”
Example:
A worker who has cancer needs to undergo treatment and
rehabilitation. His employer allows a period of disability leave
and permits him to return to his job at the end of this period.

1
Equality and Human Rights Commission Equality Act 2010: Statutory Code of Practice:
Employment 6.33. Trades Union Congress Sickness Absence and Disability Discrimination 12
The employer should be reminded of their legal obligation to
consider all reasonable adjustments. It may be necessary to
agree that the employer can seek their own expert opinion on
proposed adjustments, including use of their Occupational
Health service (on the possible pitfalls of which, see below) if
they have one. The law does not require them to make an
adjustment that will not work (be effective), or would be
unreasonably expensive or disruptive (something judged in
relation to the organisation’s size and resources).
“Reasonable Adjustments”
What is “reasonable” depends on a legal definition, not a
common sense definition, so it may be important (depending
on whether the employer has adopted a collaborative, or a
legalistic, approach) to understand this in Equality Act terms.
To do so means following these stages and addressing the
relevant questions:
• Is there anything that can be done that would enable the
worker to resume their original job?
• Has the disabled worker been involved in discussion about
the possible adjustments? This elementary consideration is
sometimes overlooked and can cause great difficulty.
• Can the job itself be “adjusted” to enable the worker to
return to it? Could, for example, some of the duties be
allocated to another worker?
• Would a phased return to work achieve the desired
outcome?
• If the disabled worker cannot continue in their present job,
is there another post within the organisation that they could
take up? Case law2
has established that redeployment even
to a higher graded post can be regarded as a reasonable
adjustment. Such redeployment, that might require
additional training and support, would likely be considered
reasonable in any large employer.

2
Archibald v. Fife Council (2004 IRLR 651). Trades Union Congress Sickness Absence and Disability Discrimination 13
When considering what is reasonable, particularly in
relation to cost, employers need to think about what it
would cost for them to take on someone new, train them up
etc.
There has been unhelpful case law on reasonable adjustments
and when the three month time limit starts to run
(Matuszowicz v. Kingston upon Hull city council [2009]
IRLR 288) so it is very important that as soon as it has
become clear that someone needs an adjustment to help them
do their job, you consider whether they need to bring an
employment tribunal claim to protect their position.
The Equality Duty
All public sector bodies and those bodies that carry out what
are known as “public functions” are liable to the equality
duty, which covers a number of grounds including disability.
It has covered disability since 2006, with other grounds
introduced with the Equality Act. The equality duty should be
an absolutely vital tool in the hands of unions to secure much
better disability employment policies from their employers.
Although many larger employers in the public sector have
already reviewed their policies and have introduced good
equality schemes, not all have, or else their understanding or
implementation of it is open to further improvement. The
equality duty places an obligation on public sector bodies
proactively to eliminate discrimination and promote disability
equality. Therefore, it would be legitimate and appropriate
(depending on the circumstances) for a union to request a
review of all policies and procedures that impact on disabled
workers: attendance, sickness, capability, and redundancy
procedures in particular, with a view to pressing for the
employer (1) to separate absences due to disability from
sickness absence, in order to discount them for the purposes
of the procedures in question; and (2) that the employer
should introduce a good disability leave policy