Disability Discrimination Archives | Employment Law Services (ELS) LTD

Women and Equalities Committee Calls for Menopause to be a Protected Characteristic

Posted on 5 August 202231 May 2023 by @deliver_els

Despite the calls from various charities and a recently published report from the House of Commons Women and Equalities Committee (WEC), legislative reform looks unlikely.

A recent survey undertaken by the Fawcett Society, a charity campaigning for gender equality and women’s rights, which was commissioned by Channel 4 for use in its documentary ‘Sex, Myths and the Menopause’, found that a majority of women (77%) find at least one menopause symptom ‘very difficult’, while 44% of women experience three or more symptoms that are severe.

The House of Commons Women and Equalities Committee (WEC) Report

On 28 July 2022, the House of Commons Women and Equalities Committee (WEC) published a report, Menopause and the workplace that emphasises there is much that employers should do to help employees, noting the risk of discrimination claims and reputational damage. Solutions include practical adjustments, additional flexibility, and fostering greater respect and understanding of the menopause.

The WEC report calls on the UK government to appoint a Menopause Ambassador to champion good practice, produce model menopause policies and trial specific menopause leave with a large public sector employer. The model policies should include as a minimum: how to request reasonable adjustments and other support, advice on flexible working, sick leave for menopause symptoms, and provisions for education, training and building a supportive culture.

While not supportive of mandatory menopause policies, the WEC report expresses disappointment that the Employment Bill has still not materialised and urges the government to bring forward legislation before the end of the current Parliament to make the right to request flexible working a day-one right. It also calls on the Health and Safety Executive and the Equality and Human Rights Commission to provide guidance on menopause within the next six months.

Noting that the current law does not specifically protect menopausal women, the report considers it unsatisfactory that they must frequently present themselves as suffering from a disability to make an effective claim. It calls on the government to “immediately” commence section 14 of the Equality Act 2010 (EqA 2010) which would allow dual discrimination claims, and to consult within six months on making menopause a protected characteristic, including a duty to provide reasonable adjustments for menopausal employees.

The UK Government Response

The UK government has published its response to the independent report, Menopause and the workplace: how to enable fulfilling working lives on 18 July 2022 and the First Women’s Health Strategy for England on 20 July 2022, and in doing so has confirmed that it does not intend to make any changes to the EqA 2010, but it has appointed a Women’s Health Ambassador for England who will sit on the newly established UK Menopause Taskforce.

Menopause and UK Discrimination Laws

Given the UK government’s response, it seems unlikely that the WEC’s calls for legislative reform will be taken forward but considering that the findings of the Channel 4 commissioned survey found that 44% of menopausal women in employment say their ability to work has been affected by their symptoms and 8 in 10 menopausal women say their workplace has no basic support in place for them, it seems clear that many employers will need to revisit their existing procedures for supporting staff affected by the menopause to avoid potentially costly discrimination claims.

In some cases, the menopause could be considered a disability under existing UK discrimination law and if someone is disabled, their employer must make reasonable adjustments to reduce or remove any disadvantages they might experience because of it.

Although the menopause is not currently a specific protected characteristic under the Equality Act 2010, an employee or worker who is put at a disadvantage and treated less favourably because of their menopause symptoms could potentially have grounds for a discrimination claim if the less favourable treatment is related to a protected characteristic, such as age, disability, or sex.

Do You Need Assistance?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers to ensure compliance with a broad range of employment law issues. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Long Covid IS a Disability Says the Employment Tribunal

Posted on 29 June 202231 May 2023 by @deliver_els

An employment tribunal has determined that an employee with long COVID symptoms was disabled within the meaning of section 6 of the Equality Act 2010 (EqA 2010).

At the beginning of June and with a suspected 1.8 mission people in the UK estimated to be experiencing Long Covid Symptoms, we considered whether Long Covid is a disability under the Equality Act. At that time the likely answer to this question was both unclear and untested but following a recent ruling at the Employment Tribunal, the answer in this case at least appears to be a clear YES.

Background of the Long Covid Case

From April 2001, Mr Burke was employed as a caretaker by Turning Point Scotland, a charity providing a range of services for individuals facing learning disabilities, alcohol and other drug use, mental health, autism, early onset dementia and Huntington’s disease.

In November 2020, he tested positive for COVID-19 initially with only mild, flu like symptoms but after isolating, he developed severe headaches and fatigue. Because of these symptoms, Mr Burke had to lie down to recover after waking, showering and dressing and he struggled standing for long periods. He could not undertake household activities, like cooking, ironing and shopping and experienced joint pain, a loss of appetite, a reduced ability to concentrate and difficulties sleeping. He also felt unable to socialise.

From January 2022, his health began to improve. However, the symptoms were unpredictable, and he would experience improvement only to suffer from fatigue, exhaustion and sleep disruption that continued to affect his day-to-day activities.

Mr Burke remained off work from November 2020 and fit notes provided by his GP referred to the effects of long COVID and post-viral fatigue syndrome. Two occupational health reports were obtained by Turning Point Scotland, one in April 2021 and the other in June 2021. Both reports concluded that it was “unlikely” that the disability provisions of the Equality Act 2010 would apply to Burke and that he was fit enough to return to work. Despite this, relapses of his symptoms (in particular, fatigue) meant that he did not return to work and having exhausted his entitlement to sick pay at some time in June 2021, he was eventually dismissed in August 2021 because of ill health.

Mr Burke subsequently brought disability discrimination claims, among other claims. Turning Point Scotland sought to have the disability claim struck out on the basis that his condition did not constitute a disability under the Equality Act and a preliminary hearing was held to determine this point.

The Employment Tribunal Judgement

At the preliminary hearing, the tribunal had to determine whether Mr Burke was disabled during the relevant period. It concluded that he was.

It considered that he was not exaggerating his symptoms and had a physical impairment (post-viral fatigue syndrome caused by COVID-19), noting that there was no incentive for him to remain off work when he had exhausted sick pay. The physical impairment had an adverse effect on his ability to carry out normal day-to-day activities and this effect was more than minor or trivial and long term because it “could well” be that it would last for a period of 12 months when viewed from the dismissal date (the last alleged discriminatory act).

The tribunal noted that the employer’s own view was that there was no date when a return to work seemed likely.

Case: Burke v Turning Point Scotland [2022] 5 WLUK 490 (27 May 2022) (Employment Judge Young).

What Can Employers Do to Manage Absence in Suspected Cases of Long COVID?

In consideration of both the EHRC statement and the established definition of a disability under the EqA 2010, Employers should adopt a cautious approach when managing cases of suspected Long COVID that may be considered a disability under the EqA 2010.

Key steps Employers should take include:

Investigate the cause and likely length of absence: Employers should establish the reason for absence and consider whether an individual is likely to return to work in the foreseeable future.
Obtain medical evidence: Depending on the illness in question, employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. The employer will normally bear the cost of an examination where it has been undertaken at their request. Information from an independent specialist who has not previously been responsible for the employee may be seen as more reliable than information from an employee’s GP.
Meet and consulting with the employee regarding medical evidence. If the employer has obtained a medical report, it should meet the employee to discuss the report and consult with the employee before taking any action on the basis of its recommendations. Consultation involves an ongoing exchange of information and views concerning the employee’s illness between the parties and full evaluation of any available medical evidence. This is especially important where there is any conflict between the evidence put forward by the employee and that obtained by the employer.
Consider reasonable adjustments or alternative employment. In consultation with the individual, the employer should consider whether there are any reasonable adjustments open to the employer to enable the individual to return to work in some capacity in the foreseeable future. Employers should also consider if there is another job within the business that might be more suitable for the employee. Any discussion of redeployment should be approached sensitively, as an employee may see it as a criticism of their abilities, or a demotion. If the job is in another office the employer will need to consider any relocation arrangements. Reasonable adjustments may also need to be made to the procedure itself. For example, meetings could take place at the employee’s home or other convenient location, the employee might require more notice of meetings than provided for by the employer’s policy or more time to read material and prepare for meetings.
Dismissal and its alternatives. Where it looks as if the employee will not be able to return to work, or the prognosis is such that it cannot be said when (if at all) the employee might be fit, the employer will need to consider the situation carefully. There may be options to explore other than the obvious route of dismissal on capability grounds. It is important to consider these options both from the point of view of unfair dismissal law and because there may be contractual entitlements which arise and failure to explore them may give rise to claims for breach of contract.

Do You Need Assistance with a Long-Term Absence Issue?

The specialist employment law team at Employment Law Services (ELS) LTD have extensive experience in advising UK Employers on their legal obligations to ensure compliance. If you have any queries about your legal obligations you can call us on 0800 612 4772, Contact Us via our website or Book a Free Consultation online.

Is Long COVID a Disability Under the Equality Act?

Posted on 6 June 202231 May 2023 by @deliver_els

1.8 million people in the UK are estimated to be experiencing long COVID symptoms by the latest Office of National Statistics (ONS) COVID-19 Infection Survey, but how many are likely to be considered to be disabled under the Equality Act 2010?

According to the latest Office of National Statistics (ONS) COVID-19 Infection Survey, based on self-reported long COVID symptoms, it is estimated that 1.8 million people in the UK are experiencing long COVID symptoms.

What is Long Covid?

Where COVID symptoms persist for more than 4 weeks, someone will be diagnosed with ongoing symptomatic COVID but where symptoms persist for more than 12 weeks and cannot be explained by any other conditions, they will be diagnosed with Post-COVID Syndrome or “Long COVID”. Developing Long COVID doesn’t appear to be linked with how ill someone is when they first get COVID-19 and people who had mild symptoms at first can still have long-term problems.

The most common symptoms of Long COVID include:

extreme tiredness (fatigue)
shortness of breath
chest pain or tightness
problems with memory and concentration (“brain fog”)
difficulty sleeping (insomnia)
heart palpitations
dizziness
pins and needles
joint pain
depression and anxiety
tinnitus, earaches
feeling sick, diarrhoea, stomach aches, loss of appetite
a high temperature, cough, headaches, sore throat, changes to sense of smell or taste
rashes

Is Long COVID a Disability?

The short answer is: Maybe.

This answer will provide very little comfort for employers managing absences related to suspected cases of Long COVID and the absence of a test capable of diagnosing Long COVID and varying recovery times complicates matters even further.

In a tweet posted on 7May, the EHRC stated that “without case law or scientific consensus, the EHRC does not recommend that “Long COVID” be treated as a disability”. Unsurprisingly, COVID support groups and unions expressed concern at this approach and, the following day, the EHRC published a clarificatory statement, in which it said that, although long COVID is not currently a condition which automatically constitutes a disability under the Equality Act 2010 (a deemed disability), if a person’s symptoms have a substantial and long-term adverse effect on their ability to carry out normal day-to-day activities, long COVID might amount to a disability, which would be determined by an employment tribunal or court in the usual way.

The Equality Act 2010 Definition of a Disability

In cases that do not involve deemed disabilities or excluded conditions, the question of whether an individual is disabled will be answered with reference to the all-important statutory definition in section 6(1), EqA 2010, which says:

“A person (P) has a disability if P has a physical or mental impairment, and the impairment has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.

Claims a Sick Employee Might Bring

The EqA 2010 prohibits direct disability discrimination indirect disability discrimination, discrimination arising from disability, disability harassment and victimisation in the workplace. It also puts employers under a duty to make reasonable adjustments for disabled employees and job applicants who are placed at a substantial disadvantage because of their disabilities.

There are a number of different claims that might arise out of an employee’s sickness, depending on whether the employee is disabled under the Equality Act 2010 and whether the employer ultimately decides to dismiss the employee by reason of their incapacity.

What Can Employers Do to Manage Absence in Suspected Cases of Long COVID?

Key steps Employers should take include:

Investigate the cause and likely length of absence: Employers should establish the reason for absence and consider whether an individual is likely to return to work in the foreseeable future.
Obtain medical evidence: Depending on the illness in question, employers should consider requesting that the employee attends an examination with an independent specialist doctor or occupational health expert. The employer will normally bear the cost of an examination where it has been undertaken at their request. Information from an independent specialist who has not previously been responsible for the employee may be seen as more reliable than information from an employee’s GP.
Meet and consulting with the employee regarding medical evidence. If the employer has obtained a medical report, it should meet the employee to discuss the report and consult with the employee before taking any action on the basis of its recommendations. Consultation involves an ongoing exchange of information and views concerning the employee’s illness between the parties and full evaluation of any available medical evidence. This is especially important where there is any conflict between the evidence put forward by the employee and that obtained by the employer.
Consider reasonable adjustments or alternative employment. In consultation with the individual, the employer should consider whether there are any reasonable adjustments open to the employer to enable the individual to return to work in some capacity in the foreseeable future. Employers should also consider if there is another job within the business that might be more suitable for the employee. Any discussion of redeployment should be approached sensitively, as an employee may see it as a criticism of their abilities, or a demotion. If the job is in another office the employer will need to consider any relocation arrangements. Reasonable adjustments may also need to be made to the procedure itself. For example, meetings could take place at the employee’s home or other convenient location, the employee might require more notice of meetings than provided for by the employer’s policy or more time to read material and prepare for meetings.
Dismissal and its alternatives. Where it looks as if the employee will not be able to return to work, or the prognosis is such that it cannot be said when (if at all) the employee might be fit, the employer will need to consider the situation carefully. There may be options to explore other than the obvious route of dismissal on capability grounds. It is important to consider these options both from the point of view of unfair dismissal law and because there may be contractual entitlements which arise and failure to explore them may give rise to claims for breach of contract.