People with disabilities in employment

People with disabilities in employment

A recent House of Commons briefing by Andrew Powell provides a position statement on the experiences of disabled people in employment. Click here to find further details.

The paper provides some interesting information which we would like to share. By way of a disclaimer, we need to point out that we have not, given time constraints, had an opportunity to corroborate Mr Powell’s assertions by analysing the data sets upon which he relies. That said, we have no reason to suggest that Mr Powell’s data analysis skills are ineffective in this regard.

In summary, the employment gap between disabled and non-disabled people as of March 2019 stands at 29.9%:  in January-March 2019, the employment rate for people with disabilities was 51.7% and the rate for people without disabilities was 81.7%. Women are doing slightly better than men – the gap being 26.3% and 33.2% respectively.  Importantly, the employment gap stood at 33.8% in 2014 so the most recent figure is used as evidence that employment opportunities are opening up for disabled people.

Less edifying are the differences in employments rates for disabled people in the UK.    In January-December 2018 the employment rate was highest for people who were disabled in the South East at 59.0%, and lowest in Northern Ireland at 35.7%. Mr Powell claims that the distribution is largely reflective of the overall employment rates within the regions, although the gap between the highest and lowest is much larger for people who are disabled.

The employment rate was highest for people with disabilities age 25 to 49 (56.4%) though the employment rate was lowest for people with disabilities aged 16- 24 (38.2%). That said, the gap between the employment rate of disabled people aged 16-24 and that of non-disabled people aged 16-24 was the smallest of any age band, at 18.3 percentage points.

To be able to draw firm conclusions we would need to (amongst other things) analyse the definitions used and apply these to the analysis carried out. This aside, it is reasonable for people who are interesting the area of disability and employment to come away with some optimism after reading the report. 

Normal Day-to- day Activities

Normal Day-to- day Activities

The employment case of The Chief Constable of Norfolk v Lisa Coffey was recently heard by the Court of Appeal, the latest stop in its route from the Employment Tribunal and Employment Appeal Tribunal. The appeal was dismissed.

Lisa Coffey, is a police officer in the Wiltshire Constabulary. She has a degree of hearing loss which has never caused her any problems in doing her job. In 2013 she applied for a transfer to the Norfolk Constabulary, but was refused because on a medical test her hearing fell, as the medical adviser put it, “just outside the standards for recruitment strictly speaking”. Ms Coffey presented a disability discrimination claim to the Employment Tribunal and was successful. Her employer appealed, but this was dismissed.

Our particular interest in this case is on the clarification given by Lord Justice Underhill in relation to “day-to-day activities.”

Section 6 The Equality Act 2010 states that: 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

But what are normal day‐to-day activities?

Lord Justice Underhill confirmed the applicability of the Court of Justice of the European Union’s (CJEU) definition in Chacón Navas and also Ring, namely that normal day-to-day activities encompass activities relevant in working life.

The appellant had tried to claim that the skills of “front-line officers” were extremely high – akin to, say, a watchmaker or highly skilled violin player – hence did not constitute normal day‐to-day activities. Lord Justice Underhill, whilst rightly acknowledging the skill and professionalism of front-line police officers, was not persuaded stating that:

“As to that, the impairment with which we are here concerned relates to hearing. There was no evidence before the ET, and it seems unlikely, that front-line officers need to have peculiarly acute hearing: they are not piano-tuners or audio engineers. I accept……. of course, that there will be occasions in the course of their duties when it is important that they be able to listen carefully or hear particular sounds (even if not a fly’s footfall), but that is characteristic of many situations both at work and outside it. Although I fully accept that the work of a front-line police officer is in many respects unique and that it is often challenging and sometimes dangerous, the multifarious activities that it involves – or at least those for which good hearing is relevant – are nevertheless for the purpose of the Act “normal day-to-day activities.”

This is important because, for whatever reason, employers will sometimes claim that, despite being impaired, a disabled person is not afforded the protection of the Equality Act 2010 because the activities associated with a role are so skilled and specialist they do not constitute normal day‐to-day activities. The Court of Appeal has clearly made such “hyper-upskilling” harder as they preferred what could be called a more sensible, and balanced approached.

Local Government Ombudsman Warns Councils that they need to check how they help people with hidden disabilities

Local Government Ombudsman Warns Councils that they need to check how they help people with hidden disabilities

Recent reports by the Local Government Ombudsman (“LGO”) criticised the London Boroughs of Hillingdon, Lambeth and Wandsworth for each not taking into account the adverse effects of the impairments of individuals in their own area who had a (non-physical) disability.

Click here to read these reports

Local Government and Social Care Ombudsman, Michael King, reminded Local Authorities of the statutory requirement to make reasonable adjustments:

“The Equality Act 2010 requires councils to anticipate the needs of people who may need to access their services. This means when councils are alerted to the fact someone might need to be treated in a different way, they should ask that person what adjustments are needed, and consider whether these are reasonable”

In order to be afforded the protections contained in the Equality Act 2010, a person must, in the absence of a deemed disability such as cancer, have a disability which complies with the following definition given in section 6 which may not correspond with an everyday understanding of disability:

 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‐today activities

We will look at this definition in greater detail in future posts but in summary impairment should be given its everyday meaning. There is no need for the person who claims they have a disability to establish a medically diagnosed cause for their impairment. It is the effect of an impairment that must be considered and not its cause

The above is a useful reminder of the support people who have a disability are entitled to receive. It is unfortunate, but in our experience, this support is all too often the exception and not the rule.

Logjam in the Employment Tribunal

Logjam in the Employment Tribunal

It is reasonable to assume that anyone who has recently come in contact with the First-tier Tribunal (Special Educational Needs and Disability) will be aware of the backlog which is routinely causing delays in getting cases heard.  These difficulties are being caused by a huge number of people seeking the assistance of the Tribunal.

But users of the Tribunal shouldn’t feel victimised because the Employment Tribunal is experiencing similar difficulties.

Claims to the Employment Tribunal have more than doubled in the last two years, latest official figures show. While the Ministry of Justice received 4,291 single claims from January to March 2017, it received 9,500 from January to March of this year. Although single claim receipts grew by just 6% compared with the same quarter last year, the outstanding caseload rose by 39% to 26,664. The mean age of claims at disposal also rose.

Another causal factor is the swingeing funding cut since 2010. This was all done when each Lord Chancellor since 2010 swore oath of office “to ensure the provision of resources for the efficient and effective support of the courts.”

We all wait and see what is going to happen next.

The LGO criticises LB Hackney for significant delays

The LGO criticises LB Hackney for significant delays

The Local Government and Social Care Ombudsman criticises LB Hackney for significant delays when completing plans for children with Special Educational Needs.

Reg 13(2) The Special Educational Needs and Disability Regulations 2014 requires that a local authority must send the finalised EHC plan to:-

(a) the child’s parent or to the young person;

(b) the governing body, proprietor or principal of any school, other institution or provider of relevant early years education named in the EHC plan; and

(c) to the responsible commissioning body,

as soon as practicable, and in any event within 20 weeks of the local authority receiving a request for an EHC needs assessment.

 When the EHC plan is issued, disagreements can be resolved by mediation or by the First-tier Tribunal (Special Educational Needs and Disability) standing in the place of the local authority.

The Ombudsman looked into two cases and found that in one case a boy with autism only received his plan after 69 weeks. In the second case, there was a 48-week delay in providing a plan for a young boy with Down’s syndrome.In both cases the boys’ families were found to have made significant efforts to ensure the council provided the services they were entitled to.

The Ombudsman made a number of specific (including financial compensation) recommendations in relation to the families concerned and also general recommendations designed to improve the relevant processes within the LB Hackney.

In our experience, while many local authorities adhere to the said timescales, this is not always the case. This case is a reminder that, when unnecessary delays are experienced in issuing an EHC plan, parents and young people should consider invoking the local authority’s official complaints procedure. 

Full details of the Ombudsman’s findings  can be found click here

Normal Day-to- day Activities

Disability and Relates Issues

Does the period in which an employer must take into account the protected characteristic of disability include the period after dismissal to the end of the appeal process? Yes, according to Baldeh v Churches Housing Association [2019] UKEAT 0290_18_1103 (11 March 2019)

In this case Mrs Baldeh worked as a support worker and issues were raised in relation to her performance – this all happened within her six-month probationary period. Specifically, “… several of your [Mrs Baldeh’s] colleagues have made comment about your [her] manner while at work”

At her appeal hearing, she told her employer that she was suffering from depression which could have influenced her behaviour towards her colleagues and also affected her short-term memory. Following the rejection of her appeal, she claimed discrimination arising from disability, under s. 15 The Equality Act 2010.

When her claim to the Employment Tribunal was unsuccessful, she appealed to the Employment Appeal Tribunal who, perhaps unsurprisingly, found in her favour. The Employment Tribunal’s judicial reasoning was found to be defective in a number of areas, all of which make the judgment an interesting read.

More broadly, this case makes the following clear:

  1. An employer must take into account the protected characteristic of disability up to the end of the appeal process. It is reasonable to apply this approach to children/ young persons who are having exclusions considered by a governing body or Independent Review Panel.
  2. 15 The Equality Act 2010, discrimination arising from disability, relates to unfavourable treatment because of something arising in consequence of a person’s disability. The Employment Appeal Tribunal were very clear that it was sufficient for the “something arising in consequence” of the disability to have a “material influence” on the unfavourable treatment: the fact that there may have been other causes did not assist the employer. Again, this may be of assistance in exclusion cases.
  3. A defence in 15 The Equality Act 2010 cases is that the employer – or we could also say school – did not know, and could not reasonably have been expected to know, that the person treated unfavourably had the disability. That said, it would be reasonable to say that, if the question of disability was on the radar, is should not be ignored rather it should really be investigated further.

An example of a small case with significant ramifications.

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