The number of people making claims for disability discrimination in the Employment Tribunal has soared by 37% compared to last year. With Employment Tribunal claims in general rising only 4% that means the number of disability discrimination claims has risen more than eight times faster than the growth of all tribunal claims. Why?
What’s caused the rise in disability discrimination claims?
What is clear is there has been a stark rise in people claiming disability discrimination on the grounds of stress and depression. What is not clear, is the reason behind this. The rise may be due to more discriminatory behaviour by employers but another more widely held belief is that employees are more willing to bring such claims. I think the latter is probably more correct and based on a combination of factors.
There is evidence to suggest we are all more stressed as a nation than ever before. Fortunately, more people are talking about mental health and getting the right support. If someone has significant mental health issues then it seems feasible it may impact on their ability to do their job from time to time. Whether stress and depression qualifies as a disability (for the purposes of an employment law claim) depends on the impact on the individual but ultimately, this will be for a tribunal to determine.
What can employers learn from this disability discrimination case?
Employers need to handle the pressures facing their employees in their work and personal life in the right way; that is not always happening. With the internet people have easy access to employment law information and are aware of their rights leaving employers with little room for avoiding penalties for discriminatory conduct. Employers should make sure staff are adequately trained and have proper procedures in place. An example of failings and how not to handle employees can be seen in a recent case where an employee with diabetes was ‘humiliated’ at work and awarded compensation of £14,000 for disability discrimination.
The case involved a newly hired employee who suffered with diabetes. During her interview there was no reason to disclose her condition as it was kept under control. However, at a welcome lunch she disclosed the condition after being asked why she wouldn’t be “drinking” [alcohol]. Later she discovered her manager and a colleague had made what the tribunal found to be a ‘joke’ at her expense over email. The employee’s manager also told the employee that she had to meet with HR because she failed to tell them she was diabetic at the interview. At the meeting with HR she was asked invasive questions and was later taken around the office by someone to find a first aider so she could tell them about her condition. The tribunal said this meeting was “excessive, invasive and heavy handed”.
Also in this case, the tribunal found there was an occasion where the manager and employee were late delivering a car to the company chairman’s house. This was due to the employee feeling unwell due to low blood sugar. The manager warned the employee that if she told the Chairman’s PA the real reason, she would be “sacked on the spot” so gave the employee another reason to make a disability discrimination claim. The employee was later dismissed due to performance concerns however, her manager gave little information on specific performance concerns despite the employee’s requests.
What can employers learn from this case?
In most situations an employer should not ask health questions at interview and nor is an employee/worker required to disclose such information. Health questionnaires post interview may be helpful for employers to be aware of any health conditions in order to see what support someone requires. If a person discloses a health condition then unless that person is stating it will impact their ability to do their job, there is not normally much action required beyond this unless the employer has good evidence to disagree either at the outset or in due course. In addition, if someone has a potential disability and their employment ends abruptly without good reason, then an employee/worker with any length of service will have recourse and potentially merit to challenge that decision.
For advice on how to handle disability discrimination claims or managing employees, please contact Warren Moores in our Employment Law & HR team on 0161 475 1225.