In this month’s On the case, Layla Bunni explores how to deal with a possible disability discrimination case and provides some tips on avoiding DDA claims.

A catering company is recruiting for a number of vacancies for kitchen support staff. Mr X attends an interview and is offered one of the vacancies. He receives a formal offer in writing two days after he attends the interview. The terms of the offer stipulate that it is conditional upon the candidate providing the company with two references, one of which must be from the individual’s most recent employer.

Mr X has not been working over the previous eight years because he has been suffering with chronic pain in his muscles and tendons. He has recently started new medication which has resulted in his doctor signifying that he should be fit to work. However, due to the length of time since he has been employed, he is finding it difficult to contact his old employer to obtain a reference from him. He notifies the company of this fact. 

Should the company withdraw the offer of employment?

If the company decides to withdraw the offer of employment as a result of Mr X failing to provide a reference from his old employer, Mr X could potentially claim that he has been discriminated against under the Disability Discrimination Act 1995 (the DDA) as a result of the company’s requirement that applicants will only be employed by the company if they are able to provide a reference from their most recent employer.

Can Mr X legitimately seek protection under the DDA?

If Mr X can produce medical evidence to show that the chronic pain that he has been suffering from has had a substantial impact on his ability to carry out “normal day to day activities”, and it is likely to have a long term effect on him, then his condition could qualify as a disability under the DDA. Normal day to day activities can include ability to lift, carry or otherwise move everyday objects, mobility and physical co-ordination.

The fact that he is receiving medication to control the pain does not mean that he no longer has the disability. Additionally, even if he no longer suffers from the condition, this does not mean that he is not protected under the DDA.  Past disabilities are also deemed to apply in the same way as they apply to a person who has that disability. 

It would be difficult for the company to run the argument that they did not know or could not reasonably have been expected to know of Mr X’s disability. This is on the basis that it would not have taken more than a few enquiries to understand from Mr X why he could not provide the required reference. Additionally, if Mr X was required to have provided details of his employment history as part of his application for the job, the gap in his employment history would have been apparent, with the expectation being that the company would asked about this during the interview process, at which time they would have become aware of Mr X’s disability.
 
What can the company do to avoid such a claim?

In order to avoid Mr X pursuing a DDA claim against the company, rather than withdrawing the offer of employment, the company should take steps that are reasonable under the circumstances in order to avoid placing Mr X at a substantial disadvantage in comparison with other people who are not disabled. Such steps could involve the company deviating from requirement that applicants are to provide the company with a reference from their most recent employer. Instead of this requirement, the company could ask that Mr X provides two personal references from people who have known him for over 10 years.  This is likely to be considered a “reasonable adjustment”.

General ways to avoid DDA claims

There are various actions that employers can take to avoid discriminating against disabled people. In doing so, employers are likely to minimise the number of claims that could be brought against them. These include:
 

• Avoid making assumptions. For example, do not assume that because a person does not look disabled, he is not disabled
• When managing employees with disabilities, ensure that they listen carefully to the disabled people to establish their needs
• Always seek expert advice to ensure that the needs of disabled people are properly met
• Implement anti-discrimination policies and practices. These will help to ensure that those managing disabled people will comply with their duties under the DDA
• Monitor employees to determine whether any anti-discrimination measures taken by the organisation are effective.

 Layla Bunni is a senior associate, specialising in employment law at Starr & Partners LLP. She advises on a wide range of both contentious and non-contentious employment issues.