Disability Discrimination - A reasonable adjustment?

Whilst employers must make reasonable adjustments where a person has a disability, can the same be said where a person does not currently display any symptoms but could do in the future?

What is the chance that a condition will 'recur'?

The House of Lords has ‘redefined’ the interpretation under the Disability Discrimination Act 1995 (DDA) of when a condition is capable of recurring thereby opening employers to new claims for failing to make reasonable adjustments. Previously, it was understood that an employer only had to make reasonable adjustments if the chance of a condition recurring was "more probable than not”. The House of Lords has provided a new interpretation so that now employers must take action if the return of the medical problem "could well happen".

The case

In Boyle –v- SCA Packaging, Mrs Boyle suffered from vocal nodules. She had undergone surgery and had speech therapy to treat the condition. Following her treatment, she had to follow a strict regime of resting her voice, sipping water and keeping background noise to a minimum. Because of this strict regime, Mrs Boyle was able to control her symptoms. Her employer then attempted to remove a partition separating her office from a stock control room. Mrs Boyle resisted this saying that this would make her work area noisy and increase the risk of her condition recurring. At the time the employer tried to remove the partition, Mrs Boyle did not have any symptoms of vocal nodules. She brought a claim for disability discrimination.

The Decision

The House of Lords accepted that SCA Packaging failed to comply with its obligations to make reasonable adjustments. It accepted that although at the time of its decision Mrs Boyle was symptom free, removing the partition meant that a recurrence of her condition ‘could well happen’. She was awarded £125k in a settlement.

Implications for Employers

This decision has huge implications for those suffering from conditions which they control through medication or treatment or conditions which could flare up at any time, for example, diabetes, epilepsy, rheumatoid arthritis, multiple sclerosis and a number of other health issues. Employers need to ensure they take expert advice and consider carefully whether they are making reasonable adjustments wherever possible. When seeking expert advice as to a person’s condition, employers will need to include questions which ask (1) whether an individual has a “disability” (within the meaning of the DDA); (2) whether the illness is 'likely' to last 12 or more months; and (3) whether a recurrence of the condition “could well happen” and under what circumstances. Employers should also ignore the medication or treatment and focus on the actual condition.

With the Equality Act 2010 set to become law this October, there will be greater protection for disabled workers. The Act will protect people who have a disability, who have had a disability, who are perceived to have a disability, or are associated with a disabled person. Under the new Act, it will be unlawful to discriminate against a disabled person because of their disability plus discrimination arising from a disability and indirect discrimination, to counter the effect of Malcolm –v- Lewisham Borough Council. The obligation to make reasonable adjustment remains. It will also not be discrimination to treat a disabled person more favourably than a non-disabled person. Employers should therefore review their own policies and procedures now to ensure that when the new Act comes in they are not at risk of equality claims.

Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.

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