Case ref: 1.1/March 2004
Summary of case
Member sustained Repetitive Strain Injury. A few minor adjustments were made by employer, i.e. typequick package and wrist rest installed etc. There was a delay of four months in implementing some of these measures. Member had signed off on long term sick.
Can the employer be held responsible under the DDA for causing a deterioration in the member's condition?
Key advice provided by Thompsons
Thompsons provided advice which included the following comments on the application of the Disability Discrimination Act:
"The Disability Discrimination Act 1995 makes it unlawful for most employers to discriminate against employees. To bring an action against an employer under this Act, (the member) will need to prove that she is suffering from a disability as defined by section 1 of the Disability Discrimination Act, and that she has been discriminated against because of her disability, this could be direct discrimination i.e. treating her less favourably than other employees or by failure to make reasonable adjustments to accommodate her disability.
"A person has a disability for the purposes of the Discrimination Act if he or she has a physical or mental impairment which has a substantial long-term effect on their ability to carry out their normal day-to-day activities. The Tribunal will look at the activities that an individual will do on a daily basis and not the duties that they are expected to carry out at work. When deciding whether someone has an impairment which has a substantial effect on their ability to carry out their day to day activities, the following will be taken into consideration:
- Manual dexterity
- Physical co-ordination
- The ability to lift, carry or otherwise move everyday objects
- Speech, hearing or sight
- Memory or ability to concentrate, learn or understand, or perception of risk or physical danger."
The advice provided by Thompsons then went on to say:
"It is clear from your instructions to what extent (she) experienced difficulty in carrying our her everyday day to day activities at home and in her personal life. However it is my view that she would have problems with her ability to carry, lift or otherwise move everyday objects. In any event it would appear that (she) would fall within the meaning of section 1 as her physical impairment has lasted for more than a year and she has complained of it having a substantial and adverse effect on her ability to carry out her day to day duties.
"As (she) has overcome the first hurdle, namely that she may well fall within the definition of section 1 of the Disability Discrimination Act, we must now look at whether or not her employers have in fact discriminated against her in failing to make reasonable adjustments. From the facts of this case it would appear albeit there being a four month delay, that her employers did comply with their section 6 duty to make reasonable adjustments.
"It is noted that (her) case is based on the fact that there was some delay in carrying out these adjustments, however the Employment Tribunal will simply look to see whether the adjustments have been made and in any event section 6 (4) of the Disability Discrimination Act 1996 states that regard shall be had to the extent to which it is practicable for the employer to take the steps and the financial and other costs which would be incurred by the employer in taking the steps and the extent to which it would disrupt any of his activities.
"Furthermore regard should be had to the ability to the employer of financial or other assistance with respect to taking the steps. There is nothing in the statute to say that the adjustments made must be made within a specific time frame, however it is likely that the Employment Tribunals will consider whether or not the adjustments were made within a reasonable time in the circumstances and in view of the Respondent's argument that adjustments could not be made earlier because of testing requirements it is likely that the Employment Tribunals would be persuaded that they carried out the adjustments within a reasonable time.
"In the circumstances it is my view that (she) may experience problems proving her case and I consider that there are not reasonable prospects of success. Furthermore your enquiry regarding whether the employers can be held liable for the exacerbation of (her) injuries in failing to make the reasonable adjustments within a specific time frame is not a matter that the Employment Tribunals could consider and is a matter for (her) to pursue with a Personal Injury Specialist."
Legal Department comment
Whilst Thompsons advised the prospects of success were not good, the advice they provided on the definition of disability vis-à-vis the application of the DDA and the employer's obligations on reasonable adjustments are helpful in terms of potential read across to other similar cases. You should also note the comment about the potential for a Personal Injury claim in the context of alleged exacerbation of the member's injuries.
The PCS Equality Dept may be able to provide some advice about how the DDA applies and be able to assist before any decision is made to seek advice from Thompsons.