When Does The Protection Against Disability Discrimination Begin To Apply?
In the UK, it is unlawful for employees to suffer unfavourable treatment due to having a disability and the Equality Act 2010 (EqA) provides protection for every section of UK employment. Disability is a protected characteristic in this key piece of legislation and therefore, an employee can bring a discrimination claim to an Employment Tribunal if they are treated unfairly because they are disabled. There are different types of disability discrimination mentioned within the EqA too; direct discrimination, indirect discrimination, harassment and victimisation, and the UK workforce are protected by this legislation from all of them.
Under Section 6 of the EqA, disability is described as;
“ (1)A person (P) has a disability if—
(a) P has a physical or mental impairment, and
(b) the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.
This definition is relatively wide and it extends to a range of conditions, including certain medical conditions that are listed under Schedule 1, Paragraph 6 including; cancer, HIV infection and multiple sclerosis.
Whilst it is very clear who the EqA protects, it is not as clear when the protection actually begins to apply. For example, in the case of Bennett v Mitac Europe Ltd, the Employment Appeal Tribunal had to establish when the protection against discrimination because of cancer applies.
What happened in Bennett v Mitac Europe Ltd?
The claimant, James Bennett, made a case that he was dismissed because of his manager’s disability.
Not long after being recruited, Stuart Balaam, Mr Bennett’s manager, was admitted to the hospital with a suspected heart attack. Following this, he sent an email to his colleagues saying he underwent various tests and has a growth on one of his kidneys. He also said he needed to undergo a biopsy to see what the growth is. He then met with the EU Business Head, Ms Huang, and informed her that he expected one of his kidneys would have to be removed. From this moment, he said that her attitude towards him changed.
Mr Balaam underwent a biopsy and later received a diagnosis of cancer. He was told he would have to undergo an operation and he informed Ms Huang of this straight away.
After some concerns about the performance of the business and the performance of both Mr Balaam and Mr Bennett, they were both dismissed with immediate effect. The dismissal letters they received said their dismissal was due to “poor performance”. However, Mr Bennett did not think that this was the case and he brought a claim to the Employment Tribunal.
The Employment Tribunal dismissed the claimant’s claim of direct disability discrimination. The judgment stated; “The claimant’s claim of associative direct discrimination in respect of his dismissal on the grounds of the protected characteristic of the disability of Stuart Balaam is not well-founded.”.
This decision was appealed by Mr Bennett and the Employment Appeal Tribunal later found that the “Tribunal did not note that even if performance was the primary reason for dismissal it did not preclude the possibility that Mr Balaam’s disability was also a material cause.”.
One of the biggest considerations made by the EAT related to when the respondent knew Mr Balaam was disabled. The EAT stated that “an employer’s attitude to a person who is unwell, but not known to be disabled, could be relevant to determining the reason for the treatment of the person once it becomes known that the ill health constitutes a disability”.
The email Mr Balaam sent to his colleagues is of significance in this case as it could be considered the moment the claimant was first disabled due to having cancer and also the first the respondent knew of this disability.
The EAT determined that this matter now requires remission to consider the date upon which the employer had actual or deemed knowledge of Mr Ballam’s disability and, in turn, whether the claimant was discriminated against because of his manager’s disability.
When does protection begin to apply?
Chapter 2, Section 2.18 of The Equality and Human Rights Commission code of practice states that “Cancer, HIV infection and Multiple Sclerosis are deemed disabilities under the Act from the point of diagnosis.”. However, the word ‘diagnosis’ does not appear in the EqA and this is where the complication lies.
Judge James Tayler in the case above said “it is important to distinguish between a person having cancer and having been diagnosed as having cancer. It is the former that is protected.” He also said that “if there is any doubt, the statute prevails over the guidance.”.
It is important to note in situations where there is some confusion as to when protection against disability discrimination begins to apply, a person can actually be subject to discrimination because they are perceived to have a disability. In this case, there would be no diagnosis date and therefore, it begs the question that an employee could still be discriminated against because of a disability when it is thought that the disability will arise at a later date.
Ultimately, many employment law specialists agree that the knowledge of a prospective disability can result in an employee being treated unfairly before they have received a formal medical diagnosis. In these circumstances, it is thought that employees should receive protection from the EqA in the same way they would if they had already been diagnosed.
When making a discrimination claim similar to the one above whereby discriminatory behaviour may have taken place prior to an official diagnosis, it will be up to an Employment Tribunal to determine whether or not this is in fact disability discrimination in the eyes of the law. It is recommended that you seek legal advice should you find yourself in a situation where you think you have been discriminated against and an employment law specialist will be able to provide you with sound guidance tailored to your individual circumstances.
Speaking to a specialist about a disability discrimination claim
It is fair to say that employment law can be quite complex and if you are unsure whether you may be able to bring a claim to the Employment Tribunal, do not hesitate to contact Damian McCarthy. Damian is regularly instructed on high profile discrimination cases and he has many years of experience handling complex employment law issues. Regardless of what discriminatory behaviour you have experienced, Damian will work hard to understand your case and achieve the results you were hoping for.
The biggest law firms in the UK regularly hire Damian to represent their clients and he has earned a reputation as a tough and effective employment law advocate. Not only will Damian represent you fearlessly, but he will always have your best interests in mind when assisting with your discrimination case. With comprehensive knowledge of discrimination law, you can have peace of mind knowing that you are in very capable hands with Damian. So, get in touch today for a free, confidential and no-obligation discussion.