The employment protection rights of the disabled have been strengthened by a new Court of Appeal ruling.
The decision in Clark v TDG Ltd (t/a Novacold) will require employers to take a closer look at their strategies if they want to dismiss a disabled member of their workforce, according to personal injury and employment law specialist Michael Harne.
Harne, senior partner and head of the employment unit at Hull-based firm Stamp Jackson & Proctor, represented the claimant, Darren Clark.
Clark was sacked because he sustained back injuries which meant he would be unable to resume work within what his employer considered a reasonable timescale.
Clark was off work as a result of a back injury he suffered in a lifting accident at work. His employer paid him for 16 weeks absence but then dismissed him, claiming that his injuries would result in long-term absence. It backed its action with a report from an orthopaedic surgeon which it said indicated it was impossible to say when Clark would be likely to be fit to return.
Clark then launched a claim at Hull Industrial Tribunal alleging that his dismissal was contrary to the Disability Discrimination Act 1995. His claim was dismissed. However, later appeals, first to the Employment Appeals Tribunal and now to the Court of Appeal, focused on the question of the obligations of employers in circumstances such as these and the criteria that have to be met if they are to avoid falling foul of the provisions of the Act.
In the Appeal Court, Lords Justices Beldam, Roch and Mummery made it clear that the comparisons to be made when deciding whether a disabled person has been discriminated against are not the same as those to be taken into account when allegations are made under the Race Relations Act 1976 and the Sex Discrimination Act 1975.
They have sent the case back to the industrial tribunal for reconsideration.
The Appeal Court's decision centres on the comparisons that need to be made to decide whether disability discrimination has occurred. Closely tied in with this consideration is the question of whether the employer has done everything it can to find alternative and suitable employment for the employee within the company.
The appeal judges held that Clark was dismissed because he was unfit to perform the main functions of his job. In those circumstances, the comparison that had to be drawn was whether a person who would have been able to do the job would not have been dismissed.
Lord Justice Mummery said that dismissal, including compulsory retirement, of a disabled person for a reason relating to disability needed to be justified.
He added that the reason would have to be one which could not be removed by re-adjustment of the workforce – by moving the person to another job.
The judge said: "It would be justifiable to terminate the employment of an employee whose disability makes it impossible for him any longer to perform the main functions of his job, if an adjustment such as a move to a vacant post elsewhere in the business is not practicable or otherwise not reasonable for an employer to make."
Harne says this decision considerably strengthens the hand of those claiming disability discrimination, making it easier in future for such employees to show that they have been discriminated against.
He adds that it will make employers take a much closer look at the potential for alternative employment before dismissing a disabled person.
"Until this case, no one knew who the comparator was in the context of disability discrimination," says Harne.
"Now the appeal judges have clarified the situation. In a nutshell this decision is going to make it easier for an employee claiming he is suffering from long-term disability to show discrimination. As far as the employer is concerned, he is going to have to rely on a defence of justification if faced with a discrimination claim. He will have to show there were no alternatives to dismissal.
"That is going to mean that employers will have to rationalise decisions to get rid of people and they will have to get to grips with what they are going to do earlier rather than later."