Reported tribunal decisions on disability discrimination cases remain fairly scarce and anyone attempting to advise on this area of law faces difficulties since precedents do not yet exist.
However, a recent case in which Barlows acted for the respondent gives some indication of the approach being taken by tribunals.
The applicant was a warehouse worker with a history of depression who had also sustained a back injury in a road accident. The respondent made immediate adjustments for the applicant's back problem, but the applicant was then absent from work suffering from depression from February 1997 until her dismissal in July 1997.
The respondent attempted, unsuccessfully, to discuss with the applicant a possible return to work. Two doctor's reports were obtained, the second of which stated that any return to work would be unlikely for the foreseeable future. The respondent eventually decided it had no other option than to dismiss the applicant, having warned the applicant by letter and in person that this option was being considered.
The tribunal found that the applicant's back injury and her depression were both "disabilities" under the Act. It decided that the respondent had made adjustments for the back problem by ensuring that she no longer had to lift or bend.
It also found that the dismissal was not discriminatory, since the respondent would have dismissed any other person, able bodied or otherwise, absent from work for a long time.
There may be a duty for a person with a disability to take such steps as are reasonable to lessen the effects of the disability. Here, the applicant had refused to take medication which may have assisted her return to work.
Also, justification for an employer's actions may be provided by the continued inability of an employee to carry out the work for which he/she was employed. Unfortunately, the tribunal did not cover these points in its decision – we await further case reports with interest.
