The number of employment tribunal claims for discrimination arising from disability appears to be rising. John Charlton looks at what is behind the trend, and asks how future developments could affect the way employers manage disabled people at work.
Discrimination arising from disability was introduced in the Equality Act 2010 to prevent disabled people being treated “unfavourably because of something arising in consequence” of their disability. Anecdotally, it appears that the number of discrimination arising from disability claims is rising, so are employees adopting it as a relatively easy route to success in employment tribunals?
Joanna Marshall, employment solicitor at Charles Russell Speechlys thinks this is the case. “One of the reasons [for the rise] is because case law appears to be making it increasingly easy for claimants to be successful in bringing this type of claim,” Marshall says.
“In the recent case of Risby v Waltham Forestthe Employment Appeal Tribunal (EAT) held that the casual link between the unfavourable treatment and the disability does not have to be very strong in order to make a discrimination arising from disability claim. Therefore, even where the link between the individual’s conduct and their disability is seemingly tenuous a tribunal might find there is sufficient to constitute discrimination. This has significantly broadened the scope of discrimination arising from disability.”
Naeema Choudry, employment partner at Eversheds, agrees, and suggests that employment tribunal claimants may be making claims for discrimination arising from disability because it is more difficult to win claims for an employer’s failure to make reasonable adjustments.
“In practice, it is not difficult for a claimant to establish they are disabled,” says Choudry. “In many cases a set of facts could give rise to simultaneous claims for discrimination arising from disability and a failure to make reasonable adjustments, and many claimants do take a belt-and-braces approach and bring both types of claim.”
She adds that “from a legal perspective” a discrimination arising from disability claim is “usually much more straightforward” than “trying to shoehorn in a reasonable adjustments claim”.
Martin Pratt, employment partner at Gordon Dadds points out: “As part of the Government’s welfare reforms there are more and more people with disabilities in the workplace. This is obviously a positive, but in many cases employment practices have not kept up – resulting in more claims.”
Ministry of Justice (MoJ) figures for tribunal cases do not break disability discrimination claims down by type of case. If anything they show such cases overall have fallen. In 2015/16, the MoJ logged 3,183 cases of disability discrimination coming before employment tribunals, compared with 7,260 in 2012/13.
To put this in context, there were 66,096 multiple, and 16,935 single, claims going before employment tribunals in 2015/16. In 2012/13 there were 136,837 multiple and 54,704 single cases considered by employment tribunals.
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