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pdtscully
08-30-2012, 06:16 PM
I should have posted earlier... Anyway, below is the first case of Discrimation arising from disability (Equality Act 2010) in relatation to Disability Related Sick Absence that has been held at an Employment Tribunal.

Williams v Ystrad Mynach College ET/1600019/11

Date added: 19 April 2012

Equality Act 2010 | disability discrimination | discrimination arising from disability

This case is a useful early example, along with McGraw v London Ambulance Service NHS Trust ET/3301865/11, of how employment tribunals are approaching the new concept of "discrimination arising from disability" under the Equality Act 2010. This claimant succeeded in showing that his employer's requirement that he move to a new contract was unfavourable treatment that arose in consequence of his disability and the employer's actions were not justified.

Mr Williams is a lecturer specialising in mechanical services and plumbing. He was employed by Ystrad Mynach College. He has had a number of serious illnesses and it was acknowledged that he had a high sickness absence rate. The college had been supportive during his illnesses, referring him to occupational health and allowing him phased returns to work.

In June 2007, Mr Williams was diagnosed with hydrocephalus, which is a rare condition that leads to the build-up of fluid inside the skull. In September 2007, he had an operation to insert a shunt, which is a form of catheter that enables excess fluid to be reabsorbed elsewhere in the body.

In March 2010, Mr Williams began having terrible headaches. After a period in hospital, he was diagnosed with a haematoma on the brain as a result of complications with the insertion of the shunt. The college referred Mr Williams for an occupational health assessment, which took place in July 2010. Dr Thomas gave (somewhat contradictory, the tribunal later acknowledged) advice that Mr Williams was "certainly not fit to return to work as a full-time lecturer with [the] organisation" (suggesting that some part-time work might have been possible), but also that he was "certainly not fit to return to work in any capacity at present".

In August 2010, Dr Carne (Mr Williams' GP) issued him with a fit note stating that he would not be fit for work for 13 weeks. However, Dr Carne followed this up with a letter a week later stating that a CT scan had shown a significant reduction in swelling and Mr Williams "could now be considered fit for part-time work or possibly half his original workload".

The college commenced its capability procedure in early September 2010. Mr Williams was invited to a capability hearing, which took place at the end of September 2010. The college's capability procedure provided that:

- a first capability meeting could result only in a "written warning", followed by a period of between one and three months of monitoring for signs of improvement;
- a second capability meeting could consider voluntary redeployment where there were no signs of improvement; and
- a "dismissal interview" could take place only in circumstances where "no offer of voluntary redeployment [was] made or one [was] not accepted".
Mr Williams' first (and, as it turned out, only) capability meeting was chaired by Mr Davies, the college principal, and Mr Jarvis, the vice-principal of human resources and governance. Although Mr Jarvis did not take notes of the meeting, Mr Williams did, meaning that the tribunal preferred his evidence where there was any factual dispute about what was said.

At the meeting, Mr Williams pointed out the recent improvement in his health described in the letter from Dr Carne. He also made it clear that he was willing to work reduced hours (with his pay reduced accordingly), to give him more time to rest between periods of work. Mr Davies suggested that Mr Williams would be better off taking ill-health retirement and, if he did not retire, he should move from a permanent contract on to an "F4 contract". This is a short-term contract for academic staff that the college can terminate at any time on two weeks' notice. An academic on an F4 contract is given a set number of hours per week at an agreed hourly rate. The college is under no obligation to provide a minimum number of hours. There was no discussion with Mr Williams about what this contractual change would mean for him, but Mr Williams was aware of the nature of the F4 contract, and said that he did not want to move to this type of contract.

The outcome of the capability meeting was that Mr Williams was informed that, with effect from 1 January 2011, he would be moved to the F4 contract. Mr Davies informed Mr Williams in writing that the reason for this was that it would reduce the "stress" on him and he would be able to avoid "higher-level thought functioning" because academics on the F4 contract concentrate on working on practical issues in the workshop and avoid complex academic work. The tribunal noted that Mr Davies seems to have formed the view from internet research that Mr Williams' condition meant that his intelligence would be impaired. Although the medical evidence had suggested that Mr Williams' memory, concentration, balance and energy might be affected, there was nothing in the medical opinion that suggested that his intelligence would be impaired.

Mr Williams appealed against the decision to move him to the F4 contract, which he treated as a dismissal (although the college did not appear to realise at the time that the removal of Mr Williams from his permanent contract was, in effect, a dismissal). The appeal panel of three governors was chaired by Mrs Lippard, with Mr Jarvis also in attendance.

Mrs Lippard gave evidence to the tribunal that, although Mr Jarvis had briefed her on the appeal, she had not spoken to Mr Davies (who had ultimately made the decision) about the reasons for moving Mr Williams to a different contract. She told the tribunal that she did not question Mr Davies because "he was the sort of person whose judgment she valued". Mrs Lippard did not seek any further medical evidence about Mr Williams' prognosis, despite the inconsistent medical opinion. Mr Williams' appeal was ultimately rejected.

In her evidence to the tribunal, Mrs Lippard said that it was her opinion that it was "odds-on" that Mr Williams would become sick again. She based this on having "learnt quite a bit" while working in an administrative role for a GP. The tribunal noted that she had no clinical qualifications. One of the tribunal lay members, who had over 30 years' experience as a nurse, stated that she had rarely come across hydrocephalus and, even with her professional background, would not have ventured an opinion about the condition's effect on an individual.

Continued...

pdtscully
08-30-2012, 06:18 PM
...Continued

Mr Williams, who continued to work for the college under the F4 contract and whose health remained stable, claimed disability discrimination and unfair dismissal. In his disability discrimination claim, he argued that the college had failed to make reasonable adjustments and he had suffered "discrimination arising from disability" under s.15 of the Equality Act 2010. This section makes it unlawful for an employer to treat an employee unfavourably because of something "arising in consequence of" his or her disability where the employer knows, or could reasonably be expected to know, that the employee has a disability. An employer can successfully defend a claim if it can justify the unfavourable treatment on the basis that it was a proportionate means of achieving a legitimate aim.

The employment tribunal noted that, for a claim under s.15 of the Equality Act 2010, the unfavourable treatment does not need to be "because of" a person's disability, but must "arise in consequence of" the disability. According to the Employment statutory code of practice (PDF format, 1.09MB) (on the EHRC website), there must be "a connection between whatever led to the unfavourable treatment and the disability". There is no need for a comparator.

The tribunal described the test for whether or not the employer has a defence as one of objective justification. The employer's treatment of the claimant must have been "proportionate means of achieving a legitimate aim". This is stricter than the test for disability-related discrimination under the Disability Discrimination Act 1995, which "discrimination arising from disability" has replaced. In relation to disability-related discrimination, the reason for the treatment had to be "material to the circumstances of the particular case and substantial", which is akin to a "range of reasonable responses" test.

Applying these principles to this case, the tribunal had no doubt that replacing Mr Williams' permanent contract with the inferior F4 contract was "unfavourable treatment". The college acknowledged that its actions arose in consequence of Mr Williams' disability. The sole issue for the tribunal to consider was whether or not the college's actions were capable of objective justification.

The tribunal accepted that the college's stated aim of providing a service to its students while keeping Mr Williams in its employment was capable of amounting to a legitimate aim, if that was indeed in the minds of the decision-makers at the time that they terminated his permanent contract. However, the tribunal believed that Mr Davies simply considered that Mr Williams was no longer capable of doing the job and the new arrangement would minimise the disruption caused by his future absences. It was not open to the college to rely on an objective justification retrospectively that had not been considered at the time. Mr Williams' claim for discrimination arising from disability therefore succeeded.

The tribunal concluded that, even if it had accepted that this aim had been in the minds of the decision-makers at the time, the college had gone about implementing its aim in a disproportionate manner. The tribunal took into account:

- the college's ignorance of the effect of its actions (ie that, in ending Mr Williams' permanent contract, it was, in effect, dismissing him);
- the failure to get up-to-date medical advice when Mr Williams' medical condition changed (or to clarify inconsistencies in the medical opinion);
- the breaches of the college's capability procedure;
- the decision-makers' "improper assumptions" about Mr Williams' medical condition, based on brief internet research or previous clerical experience in the health sector;
- the lack of consultation with Mr Williams about the effect of changing his contract; and
- the failure to provide Mr Williams with an impartial appeal hearing.
Ultimately, the tribunal decided that the unfavourable treatment was incapable of objective justification because there was an obviously less discriminatory means of achieving the legitimate aim. The college could have retained Mr Williams on a permanent contract, but on reduced hours, which was the very adjustment that he sought.

Mr Williams also won his claim for unfair dismissal and the college was found to have failed in its duty to make reasonable adjustments

Practical tips

A good example of a potential claim under s.15 of the Equality Act 2010 is the dismissal of an employee as a result of a high level of absence caused by a disability.

An employer in this situation will have a defence if it can demonstrate that the dismissal was a proportionate means of achieving a legitimate aim.

To rely on this justification defence, the employer would have to show that it had a legitimate aim in mind at the time and should produce evidence (for example, up-to-date medical reports) to show that it did not rely on assumptions or generalisations about a health condition.

Generally, a dismissal will be justified only if there is no other less discriminatory option open to the employer, for example redeployment or a reduction in working hours.