Definition of disability

In deciding who is disabled within the meaning of the Act, there have been some positive IT decisions. Interestingly most of the decisions so far have concerned people with physical as opposed to mental disabilities. In Greenwood v United Tiles Limited (1101067/97/C), the applicant, who suffered from diabetes, was held to be disabled; in O'Neil v Symm & Company Limited (2700054/97) it was accepted that ME or Chronic Fatigue Syndrome was a disability, as was epilepsy in Holmes v Whittingham & Porter (1802 799/97).

Howden v Capital Copiers (Edinburgh) Limited (400005/97) is a useful case. The applicant suffered from abdominal pains for which no exact diagnosis had been supplied by doctors. Nonetheless the Tribunal concluded that despite the lack of diagnosis he was as a matter of fact disabled under the Act.

The only successful application for a person with a mental disability that we are aware of is Walton v LI Group Limited (1600562/97), where the applicant had learning difficulties. The IT reached a conclusion that he was disabled without hearing the applicant's evidence, and without having access to any medical evidence, but simply based on the evidence of the applicant's parents and the fact that he was in receipt of Disability Living Allowance.

However, not producing any medical evidence can be dangerous. In Rowley v Walkers Nonesuch Limited (2900173/97), the claim was unsuccessful where the applicant suffered from a back injury.

Although Ms Rowley had been off work for seven months at the time of her dismissal, the IT's conclusion was that there was no evidence to suggest that her physical impairment had a substantial and long term adverse affect on her: "The employers in late 1996 could not predict the future, but at that time we would not say that the condition of which we have heard came within that definition."

Similarly in Hopkins v ERF Manchester Limited (2400863/97), the IT specifically referred to the lack of medical reports available to them in reaching the conclusion that the applicant's rheumatoid arthritis did not render him disabled under the Act. However, this decision is probably wrong in that Mr Hopkins' arthritis was undoubtedly a progressive condition, so automatically qualifying him as disabled.

Discrimination

In relation to findings of discrimination, Fozard v Greater Manchester Police Authority (2401143/97) is useful even though ultimately the claim was unsuccessful. Ms Fozard suffered from learning difficulties which affected her ability to spell. She applied for a word processing job but was not given an interview on the basis that her application form contained three spelling mistakes.

The company argued that they had not known of the applicant's disability when rejecting her application. The Tribunal concluded that their lack of knowledge was irrelevant: "It is not necessary for the respondents to know that their reason for rejection related to the disability provided that the applicant can show that it did so [relate] in fact." This clearly is the correct legal conclusion under section 5 of the Act which, unlike Section 6, contains no requirement of the knowledge of the disability on the part of the respondent.

The decision in Hardy v Gower Furniture Limited (1802093/97) contains a straightforward finding of discrimination where the applicant was selected for redundancy by reason of his sickness absence, having been absent from work for over a year. The tribunal found that there was no genuine redundancy, and that redundancy was simply being used as an excuse to dismiss him.

Reasonable adjustments

Tarling v Wisdom Toothbrushes Limited (1500148/97) is one of the few successful cases where the employer was held liable under the Act for a failure to adjust under Section 6. Mrs Tarling was dismissed due to her failure to meet production targets.

She suffered from a club foot which caused her pain and discomfort at work where she was required to stand for long periods at a time. The company sought advice regarding suitable chairs for her, and were told that she might be better able to do her job using a 'Grahl' chair costing around £1000.

Instead of following this advice they simply dismissed her. The basis of the IT's finding of discrimination was that by not following the advice sought, they failed to make a reasonable adjustment.

In Williams v Channel 5 Engineering Services (2302136/97) the applicant, who was profoundly deaf, applied for a job as a television tuner. To apply he had to undergo a three day training course.

He required special adjustments to be made to the procedures to enable him to complete the course. This caused delays so that by the time he had completed the course, there was no longer a need for tuners in the area.

The company defended the case on the basis that they had adjusted the course to his requirements within a reasonable time. The IT disagreed, finding they had discriminated.

The delay was caused by their not having in place adequate systems to identify and respond to a need to adjust. "The whole tenor of the Act read with the Code of Practice is that employers should avoid discrimination and plan ahead by considering the needs of possible future disabled employees."

Sickness absence

A number of the decisions concern dismissals for sickness absence, with the employers giving as the reason for dismissal the sickness absence as opposed to the disability. Contrary to the O'Neil decision (reported in Issue 13 of LELR: Disabling decisions), in Clark v Novacold (18901661/97) the IT concluded that there should be no distinction between the two, and dismissal for sickness absence does in fact relate to the disability and accordingly is prima facie unlawful.

The question of justification is clearly going to play a major part in these cases. In Samuels v Wesleyan Assurance Society (2100703/97), the IT found that it followed from the finding of unfair dismissal, that the employer could not justify the discrimination under the Act.

In O'Dea v Bonart Limited (1700168/97) the claim concerned the threatened withholding of discretionary sick pay. Mr O'Dea had taken substantial time off work by reason of his disability, and his employers wrote to him saying that any further sick pay would only be paid at the management's discretion.

In rejecting Mr O'Dea's argument that this letter amounted to discrimination under the Act, the IT found that the treatment was justified in that it was "a proper exercise of the respondent's discretion having regard to the amount of sick pay the applicant had received over the years". This decision suggests that the Act may be interpreted by ITs as not imposing any obligations on employers to pay additional sick pay.

Compensation

Given that so few of the decisions have been successful, it is difficult to reach conclusions about likely levels of compensation. Mrs Tarling was awarded £1,200 for injury to feelings, Mr Howden was awarded £1,000 and Mr Holmes £4,250 even though as a result of his dismissal he had to be admitted to hospital with depression: all disappointingly low awards in the circumstances.

Looking forward

On a more positive note, the Labour Government has announced that at Disability Rights Commission, similar to the EOC and the CRE, is to be established within the next eighteen months. In addition, a task force is to be set up to look at ways of strengthening the Act, and is likely to be considering the Act's exclusion of small employers with less than twenty employees. It has been estimated that this exclusion currently affects some 17% of the workforce.