A talk by Hannah Boynes, Solicitor Morrish Solicitors LLP Disability Cases 2016/17 A talk by Hannah Boynes, Solicitor Morrish Solicitors LLP To IER, 18 January 2018 1

Agenda Disability Discrimination and: Privacy in the workplace Reasonable Adjustments Progressive conditions And more… 2

Reasonable Adjustments: the law Is there a “PCP” (Provision, Criterion or Practice)? Does it place C at a substantial disadvantage? Can Employer make a reasonable adjustment to avoid the disadvantage? E.g. working hours vs child care commitments, sickness absence vs attendance policies 3

Disability discrimination First Group Plc v Paulley [2017] UKSC 4 Bus had a designated wheelchair space The Company had a policy of asking passengers to vacate the space when needed but did not force them to do so A passenger with a pushchair refused to cede the space to Mr Paulley Was Mr Paulley a victim of discrimination? CC – yes; CA – no The case reached the Supreme Court… 4

Disability discrimination First Group Plc v Paulley [2017] UKSC 4 There had been a failure to make reasonable adjustments But it was not just and equitable to award compensation What were the Lords’ rationales…? 5

First Group Plc v Paulley LORD NEUBERGER Claim: Failure to make reasonable adjustments (EA 2010 s. 29(7)) PCP: The policy of asking but not compelling other passengers to vacate the space Not reasonable to have an absolute policy of requiring someone to vacate the space A policy of only compelling them when their refusal to move was unreasonable risked confrontation/violence Stopping the bus until the space is vacated would be reasonable provided not “mandatory” It would be a reasonable adjustment to require a driver to use their “best endeavours to persuade someone to move” 6

First Group Plc v Paulley LORD TOULSON Driver could say it is a requirement to move without compelling anyone to do so Driver could wait for a while (unless he is running late – but what of the on time driver?!) 7

First Group Plc v Paulley LORD SUMPTION Law can’t enforce basic decency and courtesy Company shouldn’t pretend there’s a requirement if there isn’t Introducing a contractual requirement raises Qs about when reasonable to enforce and a risk of confrontation If going to require persuasion you must specify what steps required However, agrees with Neuberger that his “unsatisfactory” approach is as near as one can get without a change in the law 8

First Group Plc v Paulley LADY HALE Law should produce equality of results not of treatment The Recorder was entitled to take the view he did It should be open to a claimant to argue for lesser adjustments than those specifically raised in pleading 9

First Group Plc v Paulley LORD KERR Reasonable adjustments duty may, properly, put others to inconvenience A more polite notice might be good for customer relations but no reason to believe an express requirement to move would be less effective Requirement rather than request is a reasonable adjustment 10

First Group Plc v Paulley LORD CLARKE Agrees with Lady Hale Concluding thought: the difficulty of assessing the “Reasonable” in “Reasonable Adjustments” 11

Reasonable adjustments Galo v Bombardier Aerospace UK [2016] NICA 25, [2016] IRLR 703 Claimant with Asperger’s Syndrome Seeks changes to the ETs approach to the hearing Neither the claimant nor his representatives had at any stage asked for any adjustments Put the tribunal on notice that there was a potential problem, putting the onus on the tribunal to consider adjustments off its own bat 12

Reasonable adjustments The Government Legal Service v Brookes UKEAT/0302/16/RN Another Claimant with Asperger’s Multiple choice format for examinations C argues an “essay” format would be more suitable ET agrees there is a failure to make RAs Appeal to EAT where C again represents herself 13

Reasonable adjustments G4S Cash Solutions Ltd (UK) v Powell [EAT 2016] Claimant with back problems Reduction in scope/difficulty of role agreed Former salary red-circled G4S seeks to end red-circling Was it a RA to continue the practice? 14

Privacy at work Surikov v Ukraine [2017] IRLR 377, ECtHR The claimant was refused promotions. When this was challenged, the employer said the decisions had been taken in the light of medical evidence about his mental health The problem was that the information that they had dated back to 1981 when he had been declared unfit for military service because of psychiatric factors A “fair balance” has to be struck between that and the employee’s interest in an element of privacy 15

Disability: progressive conditions Taylor v Ladbrokes (2017) Type 2 diabetes Likelihood of its developing into a substantial adverse effect was so small as not to count ET rules Claimant was not disabled EAT: (1) the medical evidence had not been sufficiently focussed on the questions to be answered; and (2) the EJ had not taken into account the low bar on meaning of ‘likely to’ 16

Associative disability discrimination McCorry v McKeith [2016] NICA 47, [2017] IRLR 253 The claimant was a single mother with a disabled child. She had normal childcare arrangements but her superior took the view that she should be doing more of the care herself Redundancy – Claimant selected “to give her more caring time”! Direct Discrimination made out Motive is irrelevant, even where “good but misguided” 17

Constructive dismissal Ishaq v Royal Mail Group UKEAT/0156/16 Postman – walking disability Succeeds with ET RA claim Subsequently an “altercation” with a customer – disciplinary planned C resigns and claims C/D What was the real reason for the resignation? 18

Any Questions? 19