I like the law on discrimination arising from disability, because disabilities can cause individuals all sorts of challenges at work and I believe protection is required for situations where the reason for the situation at work is not the disability itself but is something that has happened because of the disability or which is connected to disability. The case in the Employment Appeal Tribunal (EAT) of Leicester City Council v Mr John Gibbin is interesting as it concerns this protection.
Mr Gibbin was a long-standing employee of Leicester City Council and was disabled because of depression. He was, therefore, protected against all forms of discrimination in connection with his disability.
Section 15 of the EqA 2010 covers discrimination arising from a disability.
Mr Gibbin had periods of absence connected to his disability and other health conditions from which he suffered.
While sick he attended the office at the end of one working day to access files on his work computer. He had permission to do that from a more senior manager. He perceived himself to have been bullied by his line managers in connection with his ill-health and, perhaps unsurprisingly, had not wanted to come into contact with them while at the office.
He was, however, seen doing that by one of his line managers and questioned about it in a manner which the Employment Tribunal (ET) had found to be heavy handed.
That line manager then commissioned an IT search to find out what Mr Gibbin had been doing on his computer, which yielded no suspicious results. The ET also found that action to be heavy handed.
A further IT investigation was carried out after Mr Gibbin subsequently returned to work. The ET was not able to determine why this further investigation had been started but decided it had not been at the instigation of the same line manager who had questioned his previous office attendance. This investigation found images on Mr Gibbin’s work computer that were said to be racist, sexist and offensive. Mr Gibbin received a final written warning at the end of a disciplinary process which followed the investigation.
Mr Gibbin brought claims on a number of grounds, including in relation to the law on reasonable adjustments, which concerns an employer’s responsibility to make reasonable adjustments for disabled workers to enable them to do their work on an equal footing with non-disabled colleagues.
The following two decisions of the ET that were upheld by the EAT provide helpful general guidance in relation to the law on discrimination arising from disability:
- Mr Gibbin’s wish to attend the office at a time he would not likely come into contact with his line managers did arise from his disability. The ET had made a finding of fact that the evidence “…supports the fact that his depression left him vulnerable and unable to face a meeting with [his line managers]”.
- Mr Gibbin’s use of his work computer on that occasion was not connected to his disability. The ET had made a finding of fact that there was “…no evidence that his depression meant he had to use the [Council’s] IT facilities…”, for the reasons he had given, which included that he was making applications for other jobs to get away from his line managers.
It follows that the question of whether or not a situation may have been caused by a disability may not always be clear to those involved in the situation, but hopefully this blog is a helpful reference point and steer for you.
This blog was written by Ben Lindsay, Solicitor at didlaw.
