It is a regular issue for UK employers in either dealing with employees on long term sick leave or on receipt of employment litigation, as to whether the employee is disabled for the purposes of the Equality Act 2010 and whether it is worth contesting this at an Employment Tribunal hearing.
The definition of disability in the UK model is long (and slightly unwieldy) but a key consideration is the level of impact that the alleged disability has on a person’s ability to do their normal day-to-day activities. The Equality Act Code of Practice give examples of considerations that will be taken into account when determining whether the individual comes within the definition. These include: the ability to carry goods; walk certain distances and levels of concentration. Helpfully, it also gives examples of those potential areas of impact which would not automatically satisfy the test.
However, clearly each case will revolve around its particular facts and nuances and this gives Employment Tribunals a great deal of flexibility in considering whether the person has a disability. The problem for employers is that this creates a great deal of uncertainty as to how to deal with matters in an effective manner. An employee may seem to be able to perform all their contractual duties but (often even after investigation) they are still not aware of the impact of the alleged disability elsewhere in a person’s life.
The case of H K Danmark, acting on behalf of Ring v Dansk Almennyttigt Boligselskab (2013) (CJEU) may provide a way forward in the future.
Under Danish law, an employer can terminate an employment contract with a reduced one month notice period if the employee has been on paid sick leave for 120 days during the previous 12 months. A Danish Trade Union brought actions on behalf of Miss Ring and another employee who were dismissed under this provision. The argument was quite clear. The individuals had been suffering from a disability and therefore they suffered a financial detriment because they recieved a shorter period of notice than a non-disabled employee.
The matter went up to the CJEU. Interestingly, the CJEU noted that the EU had signed up to the UN Convention on the Rights of Persons with Disabilities (the “Convention”) and therefore the Directive under consideration must be interpreted in the light of the Convention.
Consequently, the CJEU said that the concept of disability for the purposes of the directive “must be understood to be referring to a limitation which results in particular in the physical, mental or psychological impairment which in interaction with various barriers may hinder the full and effective participation of the person concerned in professional life on an equal basis with other workers”.
The focus on the impact on the professional life is interesting. At this stage it is not possible to attach a great deal of weight to the decision until the EAT or the Supreme Court in the UK deal with the issue and question whether the UK Equality Act is compliant with the Directive. However, it raises the argument that the most effective way of considering whether a person has a disability is to look at the impact on the duties that they are required to perform by the employer rather than the broader issues that they may be facing. Surely an employer must only be responsible for those issues that impact on the workplace?
This should not be seen as an attempt to undermine the rights and protection of disabled workers in the workplace but rather to create a more effective balance to enable employers to plan, understand and assist disabled employees in performing their contractual duties.
It would be a welcome step forward for all concerned.