ARAG Legal Services - The easy way to keep your customers up to date on the latest legislation

If your client is a commercial policy holder they can get access to our ARAG Legal Services website. Through this site we publish a regular newsletter produced by Epoq with relevant updates to legislation that could affect your clients. Here’s a sample from the latest newsletter:

Ignorance isn't always an excuse for disability discrimination

There are several types of unlawful disability discrimination. One type is unfavourable treatment because of 'something' arising from a disability. This type of discrimination requires that the employer knows about the disability, and it's only unlawful if it can't be justified.

The question in a recent case was whether the employer, in addition to knowing about the disability, has to know that the something arose from the disability in order to be found guilty of this type of disability discrimination. The Court of Appeal has recently given the answer: no – if the employer knows about the disability, they might be found to have discriminated even if they don't know about that disability's effects.

The claimant, a teacher, had cystic fibrosis, which the school was aware of when they appointed him. This condition causes mucus to build up in the lungs, and to counter that the teacher spent many hours each day in rigorous exercise. This meant he had less time to work than others, and so he had to get a lot done in a short time. When a new headteacher started, his workload increased. All things together meant he struggled to cope with the demands and became stressed.

In this state of stress, he made the mistake of showing Halloween, an 18-rated film, to 15-16 year-olds. He was dismissed for that error of judgment.

The school didn't know of the link between the teacher's condition and his actions – the medical evidence available at the time of the dismissal didn't demonstrate a link. The tribunal therefore found the teacher's dismissal not to be unfair, so his unfair dismissal claim failed.

However, they upheld the claim for discrimination arising from a disability. Knowledge of the consequences of the disability weren't needed for that claim to succeed. Given that the tribunal didn't find the dismissal unfair, how could they also agree that there'd been discrimination?

The answer is that different tests are applied. For unfair dismissal, employers are given a lot of discretion. Tribunals take care not to ask what decision they would have made, but rather whether the employer's decision was within a range of reasonable responses. For this type of discrimination, on the other hand, the courts consider objectively whether an employer's action was a proportionate response to the claimant's actions. They noted, in particular, that if the school had made reasonable adjustments the teacher would not have been in that position.

What this means for you

This shows that you should consider all the consequences of your actions and, especially if an employee has a disability, you should actively consider reasonable adjustments. If you can justify all your actions you shouldn't be found guilty of any type of discrimination.

How we can help

If you need further information about an employee's health conditions, you may wish to use our Letter to an employee seeking consent to a medical examination*.

To get access to the ARAG Legal Services website all your customers need to do is go to www.araglegal.co.uk and register, using the voucher code printed on their policy wording. Once there they will be able to sign up for the newsletter, read old issues and access the library of form letters and other helpful resources.

*This letter is also available on the ARAG Legal Services site to commercial policy holders.