Guidance for personal injury lawyers

The DDA came into force on 2 December 1996. Only employers with less than 15 employees are now exempt. There have been more than 3,000 claims brought under the Act.

The first Court of Appeal Decision on the Act, Clark v Novacold (1999 IRLR page 318), concerns the case of the employee dismissed because of absence caused by work injury.

This article seeks to give guidance to personal injury lawyers advising clients facing discrimination after work injuries. Those seeking to use the Act should not be deterred by its apparent complexity. Lord Justice Mummery in Clark comments:

“The facts of the case are simple. The law is novel. The arguments are complicated”.

The adviser seeking to use the Act requires four essential items:

1. A copy of the Act  
2. The Questionnaire Booklet issued under Section 56 of the Act (available from the Act Helpline, telephone 0345-622633).
3. The “Code of Practice” for the elimination of discrimination in the field of employment against disabled persons or persons who have had a disability – “The C.O.P.”, issued under Section 53 of the Act.
4. The “Guidance” on matters to be taken into account in determining questions relating to the definition of disability – “The Guidance”.

The “code” and “guidance” are available from HMSO and give specific examples of types of discrimination which would fall within the Act and guidance about matters to be taken into account in determining whether a person has an impairment which might fall within the definition of disability in the Act.

The starting point for clients injured at work is the C.O.P. para 6.19; “An employer must not discriminate against an employee who becomes disabled, or has a disability which worsens… if (6.20) as a result of the disability an employer’s arrangements or physical feature of the employer’s premises place the employee at the substantial disadvantage in doing his existing job, the employer must first consider and reasonable adjustment that would resolve the difficulty…” (this refers to Section 4(2) of the Act).

Clark v Novacold:

Mr Clark was dismissed by Novacold as assistant supervisor at a food processing plant in Kingston upon Hull following a back injury. Novacold’s reason for dismissing him was that he could he no longer perform the main functions of his job. Mr Clark complained of discrimination under the Act. (He did not have the requisite length of service for unfair dismissal). He said in his application: “I see no reason why my job could not have been held open pending recovery from my injuries”. To decide whether his complaint fell within the Act, the Employment Tribunal required to consider the terms of Section 5(1) of the Act which states “an employer discriminates against a disabled person if for a reason which relates to the disabled person’s disability, he treats or would treat others to whom that reason does not or would not apply; and he cannot show that the treatment in question is justified”.

The Court of Appeal confirmed what must be the common sense view of the Section that the test of less favourable treatment is based on the reason for the treatment of the disabled person and does not turn on a like-for-like comparison of the treatment of the disabled person and of others in similar circumstances.

The Employment Tribunal held that the relevant comparator to Mr Clark would be somebody “who could have been off work for the same length of time as the applicant, but for a non disablement reason…” The Tribunal unhelpfully did not specify who such an individual might be. The Tribunal went on to say the “it was likely that a person who had been off work for a similar length of time, and where there was no foreseeability of a return to work… would have been treated no differently from the applicant”. Ergo, there was no discrimination.

The fact that this appears to defeat the basic spirit of the Act was acknowledged by the Court of Appeal who sought guidance outwith the Act. L.J. Mummery referred to the Secretary of State’s Code of Practice on Rights of Access which states “a waiter asks a disabled customer to leave the restaurant because she has difficulty eating as a result of her disability. He serves other customers who have no difficulty eating. The waiter has therefore treated her less favourably than other customers.

“The treatment was for a reason relating to her disability – her difficulty when eating… If the waiter could not justify the less favourable treatment, he would have discriminated unlawfully.” And his Lordship commented: “It is clear from this example that the comparison to be made is with other diners who have no difficulty in eating and are served by the waiter, and not with other diners who may be asked to leave because they also have difficulty eating, but for a non disability reason e.g. because the food served up by the waiter is disgusting.”

Section 1 of the Act defines the meaning of “Disability” as a “physical or mental impairment which has a substantial and long term adverse effect on… ability to carry out normal day-to-day activities”.

Schedule 1 states that the effect of impairment is long term if (a) it has lasted at least 12 months, (b) the period for which it lasts is likely to be at least 12 months, (c) or it is likely to last for the rest of the life of the person affected.

Schedule 1(4) details that the impairment will only be held to affect the ability of the person concerned to carry out normal day-to-day activities if it affects one of the following:

(a) mobility
(b) manual dexterity
(c) physical co-ordination
(d) continence
(e) ability to lift, carry or otherwise move everyday objects
(f) speech, hearing or eyesight
(g) memory or ability to concentrate, learn or understand or
(h) perception of the risk of physical danger.

The first hurdle in using the Act is for the client to show that they are disabled within the meaning of the Act; this is where knowledge of the GUIDANCE is necessary in identifying whether a particular type of disability or physical restriction falls within one of the eight headings above; the Guidance outlines factors to be taken into account. For example, a client with a back injury could utilise a number of items detailed under mobility at para. C14 of the Guidance, such as problems with sitting, standing, bending or reaching, climbing stairs, difficulty walking distances.

Initial Tribunal decisions show a restrictive view being taken of the meaning of disability, but these are gradually being overturned in the EAT; in Goodwin v The Patent Office 1999 IRLR (Page 4) Mr Justice Morrison stressed: “The Tribunal should bear in mind that with social legislation of this kind, a purposive approach to construction should be adopted…”

On July 20th the EAT considered a case appealed by the Applicant from Kent, Vickery v BT (1st September 1998, Ashford Tribunal).

The Tribunal faced with an applicant who had a repetitive strain hand injury commented: “We do not regard the doing of DIY tasks, filing nails, tonging hair, ironing, shaking quilts, grooming animals, polishing furniture, knitting and sewing and cutting with scissors as normal day to day activities as set out in the guidance, since it cannot be said these activities are carried out by the most people on a daily or frequent or fairly regular basis”. Was this right?

Mr. Justice Morrison after hearing the appeal indicated immediately that he would uphold the applicant’s appeal. He commented that the tribunal decision was wrong in law and perverse. The full decision will be issued shortly.

It is important to note that the test is day-to-day activities and not work activities. Thus an electrician who constantly required to climb ladders at work but could no longer do so after an accident would require to show some additional impairment beyond the climbing of ladders because it is submitted that would not be a day-to-day activity; the climbing of stairs would be (see Guidance, page 12).

Section 4 specifies that it is unlawful for an employer to discriminate against a disabled person

(1) in the arrangements he makes for determining to whom he should offer employment and

(2) discriminating against a disabled person whom he already employs (a) in the terms of employment which he affords him, (b) in the opportunities which he affords for promotion, transfer, training or receiving any other benefits, (c) by refusing him any such opportunity, (d) by dismissing him, or subjecting him to any other detriment.

Section 4(2) is the crucial Section referred to above linked with the C.O.P. Para. 6.19.

Section 5(1) defines the meaning of discrimination as outlined earlier in the Clark case and Section 5(2) provides a further ground for discrimination if an employer fails to comply with a “Section 6 duty”. A defence is provided to the employer if the treatment can be justified and the failure to comply with a Section 6 duty is material to the circumstances of the particular case and substantial. Specific examples are given of this in the C.O.P.

Section 6 outlines the duties of the employer to make adjustments and turning to our client injured at work outlines steps in para 3 such as

(a) making adjustments to premises
(b) allocating some of the disabled person’s duties to another person
(c) transferring him to fill an existing vacancy
(d) altering his working hours
(e) assigning him to a different place of work
(f) allowing absence for rehabilitation
(g) giving training
(h) acquiring or modifying equipment
(i) modifying instructions or reference manuals
(j) modifying procedures for testing or assessment
(k) providing a reader or interpreter
(l) providing supervision.

Section 8 provides the procedure for enforcing the Act by way of complaint to a Tribunal (within 3 months of the act of discrimination – Schedule 3).

The Tribunal can make a declaration as to the rights of the complainant and can order payment of compensation; there is no cap on the compensation awarded; in British Sugar plc v Kirker 1998 IRLR 62, Mr Kirker had been selected for redundancy partly in relation to seriously deteriorating eyesight. He was awarded £103,146.49 in damages.

One of the employer’s problems in dismissing a disabled person is that when on the open job market looking for employment they are likely to be severely hampered and this may well reflect in the award of damages for future wage loss.

A complaint can be made to an Industrial Tribunal for both discrimination and a failure to comply with the Section 6 duty; in Clark the Court of Appeal confirmed that the act of dismissal itself does not fall within the terms of the failure to make a reasonable adjustment; however pre-dismissal discrimination involving a breach of Section 6 duty can be claimed separately, so any complaint alleging discrimination following dismissal should refer to both Section 5(1) and 5(2).

As stated, the Guidance and the C.O.P. are both essential in identifying whether a particular disability falls within the Act; it must be remembered that a mental disability such as stress, if of a suitable degree, may fall within the terms of the Act. Mr Walker, the Senior Social Worker who successfully sued Northumberland Council after a nervous breakdown due to overwork, now might have a claim under the Act for his employer’s failure to carry out reasonable adjustments by altering his work load or providing him with assistance (Walker v Northumberland County Council 1995 IRLR at 35). A bizarre example already heard by a Tribunal is Crampton v Bonar Cartons Limited Leeds Tribunal 14.5.98. Mr Crampton claimed disability discrimination as a result of stress related depression, having been dismissed following an incident when he alleged to have driven his forklift truck at a colleague. He argued that his condition led to poor control of anger and that his employers had failed to make reasonable adjustments by offering him work in other less stressful parts of the operation. Not surprisingly the Tribunal were not satisfied that he had a substantial long term impairment and that dismissal was justified given the serious threats to personal safety occasioned by his behaviour.

The QUESTIONNAIRE procedure allows a potential complainant to demand from the employer a response to alleged matters of discrimination and a Tribunal may draw an inference if the employer fails to respond. The questionnaire can be submitted prior to a complaint to a Tribunal or 21 days after a complaint has been lodged; again it is a useful tool because there is no reason why an employee should not use the questionnaire to draw an employer’s attention to alleged discrimination , without necessarily following it up with a Tribunal application. Good use can be made of question 6 – “Any other questions you wish to ask?”; the employer could be asked to list the number of employees doing any particular type of job the applicant thinks he may be suitable for, whether he has a discrimination policy or what instructions were issued to management in dealing with disabled employees.

An applicant who has been seriously injured at work may qualify for INDUSTRIAL DISABLEMENT BENEFIT.

A helpful aid as a production to a Tribunal in assisting on the effect of the disability would be an industrial disablement benefit assessment; this will detail the decision of the adjudicating medical authority confirming:

(a) a loss of faculty for a specific period of time
(b) detailing the extent of the loss of faculty; for example painful movements of left elbow and left shoulder
(c) specifying the percentage disability and giving the length of time of this.

A final recent example detailing the successful use of the Act for an injured employee can be found in the Edinburgh Employment Tribunal decision in Fisher v West Lothian Council 8 January 1999. Mr Fisher, a plumber employed by the council, was dismissed because of an arthritic condition in his knees.

The tribunal in dealing with the question of discrimination concluded that he was disabled within the meaning of the Act; his ability to walk was affected. They found that the employers had discriminated because they did not take reasonable steps to investigate the availability of alternative employment. They commented “…the respondents employ some 8,000 persons. They failed to explain why the search for alternative employment for the applicant was confined to the Building Maintenance division…no search was made…throughout the respondents’ organisation as a whole”.

The conclusion of the writer is that any employer faced with a member of staff badly injured after a work or any other accident should “red-circle” that employee, reach for his copy of the Act and make very sure that he endeavours to rehabilitate him, failing which he could face a substantial claim before an Industrial Tribunal for discrimination.

David Sandison is a Senior Partner with Lawford Kidd, Solicitors and a Member of the Society’s Judicial Procedure Committee