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A difficult question facing any conscientious employer is what to do with an employee who, through no fault of their own, becomes incapable of doing their job. Before December 1996, when the Disability Discrimination Act came into force, an employer was legally entitled to dismiss a person on grounds of incapability, no matter how harsh that might have seemed.Since then, the Disability Discrimination Act 1995 has changed all that, as demonstrated by an ever-increasing number of complaints to Acas and employment tribunals. Now, it might seem even the most philanthropic of employers is at risk of being accused of unlawful discrimination if it dismisses someone incapable of doing what he or she is paid to do. The Act is also something of a semantic minefield, but two recent cases have thrown some light onto what is a rapidly expanding area of law.Section 5(1) of the Act defines ‘disability’ as a mental or physical impairment that has a substantial and long-term impact on a person’s ability to carry out day-to-day duties. An employer discriminates against such a person if “for a reason that relates to the person’s disability, he treats him less well than he would treat others”, and “he cannot show that the treatment in question is justified”. This applies to situations such as promotion, training and dismissal, and the catch-all phrase “any other detriment”.Employers are also under a ‘section 6 duty’ to prevent a disabled person from being placed at a substantial disadvantage in its arrangements for employment and the physical workplace. Installing Braille lift buttons, wheelchair ramps and allowing time off for care are everyday examples. However, this duty is not absolute – only “steps that are reasonable” need to be taken, and regard is given to the employer’s financial resources and the cost of installing such facilities. If non-compliance can be justified as not reasonable, it is still not unlawful.While case law develops, government guidance in a code of practice (for example, the Disability Discrimination (Meaning of Disability) Regulations 1996 and the Code of Practice for the elimination in the field of employment against disabled persons or persons who have had a disability) must be taken into account in judging whether discrimination has taken place.Two questions arise from this. Firstly, with whom should the disabled person be compared when deciding whether they have been subjected to less favourable treatment? Secondly, what if the employer is faced with an employee who is clearly incapable of work, but genuinely does not know if he or she is disabled? Two recent cases provide the answers. In the first, Clark v Novacold [1999] IRLR 318, Clark suffered soft tissue injury around his spine. As his work was physically demanding he was unable to continue. An orthopaedic report predicted an improvement within 12 months, but was unable to say when he would be fit enough to return to work.He was dismissed for incapability; although the subsequent employment tribunal accepted that he was disabled under the Act, and that he had been dismissed for a reason relating to his disability, it ruled against him. According to the tribunal, the test was whether a person who was not disabled would have been treated any differently if she or he had been off work for a similar amount of time. It also found that the employer had not discriminated against him by failing to comply with its ‘section 6 duty’. The tribunal held it could do so only if it had found in Clark’s favour and even if it had complied, ‘section 6 duties’ do not extend to dismissal. Clark appealed to the Employment Appeal Tribunal and was partly successful. It upheld the first conclusion of the tribunal – that he had not been treated unfavourably compared with an able-bodied worker – but found that a claim under ‘section 6′ did not depend on success under section 5(1).Both parties appealed to the Court of Appeal where Lord Justice Mummery ruled that section 5(1)(a) uses the words, “others to whom that reason does not or would not apply”. It was held that “that reason” means the reason for dismissal (or other less favourable treatment), not the employee’s disability. Therefore the comparator is not an able-bodied person off sick, but an employee who is capable of doing the job upon which he would not have been dismissed.This reasoning followed analogous situations outside the employment field. For instance a cafe that refused to allow dogs on its premises would, at face value, be discriminatory against blind people with guide dogs. However, the cafe owner is entitled to show that this treatment can be justified, for example if hygiene regulations ban animals. Therefore, every dismissal of a disabled person for a disablement reason is discriminatory unless it is justified.The second question: ‘but is an employer still liable if he was not aware that an incapable employee was disabled?’ was answered in the case of HJ Heinz v Kenrick [2000] IRLR 144. Kenrick, who had worked for Heinz as a process worker, became ill in May 1996 and started sick leave on full medical certificates. His condition worsened and he was seen by several doctors, including one retained by Heinz.None of them pinpointed the source of his illness, although arthritis, depression and a tumour were mooted. In February 1998, with his contractual sick leave running out, Kenrick read a book on ‘Chronic Fatigue Syndrome’ (CFS, or sometimes ME) and arranged to consult an immunologist at his own expense. On 3 April, 1998, Heinz dismissed him despite his protestations and his imminent consultation with the immunologist. Soon after, Kenrick was diagnosed with CFS, and his application to an employment tribunal for inter-alia disability discrimination succeeded. Heinz appealed.The Employment Appeal Tribunal likened the case to a postman dismissed for walking too slowly because of his artificial leg, and an incompetent secretary dismissed because she is dyslexic. Their incapabilities are attributable to their conditions, but the question is whether it would be unlawful to dismiss them if their employer did not know of their disabilities.The president of the tribunal, Mr Justice Lindsey, said: “There is no language in section 5(1) that the relationship between disability and the treatment should be judged subjectively through the eyes of the employer, so the applicable test should be the objective one of whether the relationship exists, not whether the employer knew of it. Indeed, unless the test is objective, there will be difficulties with credible and honest, yet ignorant or obtuse employers who fail to recognise or acknowledge the obvious.”The fact that CFS had not been diagnosed (or that CFS is not recognised by some medical experts) did not save Heinz from liability. Following the spirit of Clark v Novacold, any disability-related dismissal is discriminatory regardless of the employer’s actual knowledge of the condition. The tribunal sympathised with Heinz as it had not been a “bad employer”; on the contrary, many of its responses to the situation were exemplary. However, one major purpose of the Act was to force employers to change their attitudes in dismissal situations. They should pause to consider whether the reason might relate to disability and refer to the Act and Codes if there is any possibility that it does. The appeal judged that Heinz’s failure lay not in being ‘bad’, but merely in not changing its attitude fast enough.

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