Important developments in disability discrimination

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Posted in:HR and Employment|August 23, 2011 | Join the mailing list

August 23rd, 2011.

There have been a number of successful discrimination claims which have hit the headlines over the last few weeks. This includes an autistic senior member of a law firm who settled a disability discrimination claim for £1.3 million,
which is understood to be one of the largest settlements reached for this form of discrimination.

In another case, the AA has been found to have discriminated against a diabetic employee. The Employment Tribunal held that the AA had applied a "stringent level of assessment", where the employee’s work was found to have remained average. The Employment Tribunal
considered that taking account of the employee’s disability, his performance did not warrant the invoking of the formal performance management process.

However, employers will take some comfort from a recent Employment Appeals Tribunal case where an employee’s claim was dismissed in circumstances where the employer did not know and could not reasonably have been expected to know that the employee suffered
from a disability. This was in circumstances where the employee had failed to provide their employer with relevant information about their disability and had delayed their employer obtaining medical advice.

Alison Loveday of Berg commented that: "Hidden disabilities that are not immediately apparent such as autism, diabetes and mental health conditions, are often difficult for employers to understand and manage. These first two cases serve as a warning to employers
that a failure to make reasonable adjustments or prevent unfavourable treatment because of a disability, may place them at risk of unlimited compensation pay outs.

However, each case is fact specific and it is only in rare circumstances that such high levels of compensation are awarded. It should be noted that this first case was settled out of court and subject to a strict confidentiality agreement and therefore, the
details of the claim are not known and cannot be disclosed. In any event, when managing employees with disabilities (whether proven or suspected), it is important that employers take legal advice at the outset to ensure cases are handled sensitively and pursuant
to their legal obligations, to avoid the risk of such claims being brought, so far as possible.

Employers should have in place an effective Equal Opportunities Policy with the aim to create a working environment in which all individuals are able to make best use of their skills, free from discrimination or harassment, and in which all decisions are based
on merit. It should be remembered that employers can be held liable for acts of discrimination by their managers and other employees, and in this regard should ensure that all members of staff receive proper training. All of the management team should take
an active part in setting the appropriate standards."

To discuss how we can provide further advice in connection with these issues, please contact Alison Loveday, Partner and Head of our Employment team, by email to or alternatively
you can call Alison on 0161 833 9211.

The information and opinions contained in this article are not intended to be comprehensive or to provide legal advice. No responsibility for article’s accuracy or correctness is assumed by Berg or any of its partners or employees.
Professional legal advice should be obtained before taking, or refraining from taking, any action as a result of the contents of this article.

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