REWARD
l disability discrimination l discrimination arising from a disability l a failure to make reasonable adjustments against their employer. In the claim, the claimant stated they were disabled due to dermatitis and stress at work. In relation to the dermatitis, the claimant had suffered an allergic reaction to latex gloves, and so used vinyl gloves at work instead for several years. However, during Covid, the respondent informed them they could no longer use the vinyl gloves and that they would need to trial alternatives. One of these alternatives, unfortunately, led to another allergic reaction. This caused redness, scaliness, itchiness and inflammation. Making the change to the gloves, the claimant argued, was discrimination and a failure to make a reasonable adjustment. The claimant also claimed that their stress at work amounted to a disability. The claimant had been signed off work as sick on several occasions due to stress at work. As a result of this stress, they were more easily upset and at times unable to leave the house or socialise as they would normally. A preliminary hearing was arranged to determine whether the two disabilities cited by the claimant met the definition of disability under the Equality Act 2010. The ET was satisfied that the issues with the claimant’s hands following the allergic reactions were sufficiently serious to be deemed a physical impairment but although the dermatitis did affect the claimant’s day-to-day life, this wasn’t substantial. The claimant provided evidence that the reaction left their hands red, itchy and sore if they came into contact with certain products, such as washing-up liquid. As a result, they had to be careful only to use certain products and had some issues with handling certain foods. The evidence also showed that these difficulties could be ameliorated or removed entirely by taking certain measures, including wearing gloves. The claimant wore gloves at work and home and managed to avoid any further flare-ups of the dermatitis. The ET, therefore, found that it was reasonable to expect the claimant to modify their behaviour to avoid a reaction through the adoption of simple measures. As a result, the ET concluded that the dermatitis isn’t a disability.
The first question the ET had to establish was whether the claimant suffered from work-related stress. Medical evidence clearly showed that they did. The ET concluded that the stress (the ‘impairment’) felt by the claimant did have a significant impact on their ability to perform day-to-day activities, and as such fulfilled the test of ‘substantial adverse effects’. As the issues had already been going on for some time, they were also long-term. The ET therefore held that it isn’t necessary for a formal diagnosis of a mental illness to be given for an impairment to be a disability. The case was permitted to continue to a full ET hearing, to determine if discrimination had occurred in relation to the stress at work. “The employment tribunal in this case had to decide whether comments made to the claimant about their autism could amount to direct discrimination when they had the effect of making the claimant feel that their condition was being minimised”
In a meeting to discuss the alleged harassment of the nurse, the claimant stated that they had autism. In response, the meeting chair said to the claimant, ‘I would say that there are a lot of doctors who are on the spectrum’. The claimant took this comment as the chair’s way of minimising their condition, rather than supporting it. The chair also suggested that the claimant try making a cup of tea for their colleagues or meeting with them face-to-face. These comments left the claimant feeling that the chair thought their life-long condition could be overcome with simple steps, even though some of these steps, such as meeting face-to-face with colleagues, would have been very difficult for the claimant to undertake. The claimant subsequently took several months’ sick leave from their role. On the claimant’s return to work, they faced further investigations including accusations of bullying and harassment and not doing their job properly. The claimant brought various claims against the respondent, including direct disability discrimination. The claimant supported the claim for discrimination with evidence from the meeting in which they had disclosed their autism diagnosis to the meeting chair, when the claimant felt like their disability had been minimised. In defence, the respondent said that this was an attempt to ‘comfort, encourage and coach’ the claimant and enable them to have a better working relationship with their colleagues. The ET held, however, that the ‘spectrum’ comment demonstrated a lack of understanding of the claimant’s condition and that while to seek to minimise the nature of the condition was well meant, it was less favourable treatment. As for the suggestion concerning making cups of tea or meeting face-to-face, the ET stated there may be a place in some conversations for discussing coping strategies. However, they agreed with the claimant that such comments came across as if the disability could be overcome with simple steps, and there seemed to be no acknowledgement that the claimant’s behaviour stemmed from a life-long disability. It cannot be a matter of simple behavioural changes and the ET found that these comments were also less favourable treatment. The ET, therefore, found that direct discrimination had occurred. n
Macleod v Royal Berkshire National Health Service Foundation Trust
The ET in this case had to decide whether comments made to the claimant about their autism could amount to direct discrimination when they had the effect of making the claimant feel that their condition was being minimised. The claimant, a surgeon, began having some disagreements with senior staff over email to which management were alerted. They were also accused by a nurse colleague of routinely turning up late. The claimant emailed the nurse and made an official complaint about her comments two months later. The nurse then alleged that the claimant was harassing her.
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| Professional in Payroll, Pensions and Reward |
Issue 98 | March 2024
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