German computer software giant, SAP and Freddie Mac, a home financing firm have launched a recruitment drive to attract people with autism to join their workforce.

Freddie Mac has advertised specifically for autistic students and graduates to apply for their paid internships in a bid to harness the unique talents of autistic people. This will provide opportunities for those individuals who may have previously been marginalised in the labour market due to their disability.

Both companies are looking for individuals who are diagnosed as “on the spectrum” which may include disorders such as Asperger’s syndrome or high-functioning autism. It is said that these disorders are likely to affect around one percent of the worldwide population. Individuals with such disorders may experience social difficulties and poor communication skills which can be challenging in the workplace. However, employers assess they are more likely to see them engage in the job than get involved in office banter.

Whilst these individuals may face challenges in integrating into the workforce employers such as SAP and Freddie Mac will benefit from the qualities that autistic workers can bring including their ability to think outside of the box. Joshua Kendall, author of America’s Obsessives who argues that obsessive personality traits have resulted in some of most successful business and political leaders comments that “These big companies aren’t doing it out of the kindness of their heart; they are doing it because they now realise they’ve been missing something”.

SAP aims to employ 650 autistic people by 2020. This is approximately one percent of its workforce. We are pleased to see these companies focussing on their corporate responsibilities and appreciating the positive benefits that people with disabilities can bring to the workforce. We welcome this news with open arms and hope that this goes some way towards addressing the stigma attached to disabled workers.

Strike out is a draconian measure which employment tribunals rarely exercise. The case of Patel v Lloyds Pharmacy Ltd (UKEAT/0418/12) is therefore surprising. The EAT upheld the first instance tribunal’s decision to strike out Mr Patel’s disability discrimination claim on the basis that there was no evidence to indicate that those who interviewed him (and declined to offer him a job) knew anything about his bipolar disorder. They could not be imputed to know either. The EAT held that his claim had no reasonable prospects of success and that even taking the case at its “reasonable highest” it could not succeed. The EAT held that it would be wrong to allow an apparently “hopeless” case to proceed purely on the basis that something interesting might turn up under skilful cross-examination.

The facts of the case are that Mr Patel presented a claim for direct disability discrimination. Mr Patel suffered from bipolar disorder. He applied for a position as a pharmacy manager and was rejected following interview in 2011. His application form included an equal opportunities questionnaire on which he had put the details of his disability. Lloyds’ routine practice was to remove questionnaires before candidates were shortlisted and not to make them available to interviewers. At interview Mr Patel scored very low on the company’s standard scoring system and he was therefore not offered a job.

Mr Butt, an area manager for Lloyds had had some previous dealings with Mr Patel when he was employed by a rival pharmacy. On learning of Mr Patel’s application for the position he emailed one of the recruiting managers expressing reservations about Mr Patel on the basis that he had been aggressive, confrontational and always late for work. There was no mention of disability.

An employment tribunal struck out Mr Patel’s claim on grounds that it had no reasonable prospects of success because there was nothing to indicate that the interviewers knew anything, or could reasonably be expected to have known anything about Mr Patel’s disability. In order to be liable for direct discrimination an employer must have knowledge of disability whether actual or constructive (implied). Mr Patel appealed to the EAT which rejected his appeal.

The materials put before the tribunal by Mr Patel were obtained during a Data Protection Subject Access Request. What is curious is that the tribunal appeared to discount the fact that disclosure might turn up probative documentary evidence but there is considerable political pressure on tribunals to weed out weak claims. It seems that tribunals will take a robust approach to unmeritorious discrimination claims. With the introduction of tribunal fees from July some claims may weed themselves out, at least that is in part the intention behind tribunal fees. We shall see.

The ECJ has considered the meaning of disability and the concept of reasonable accommodations (in English law, reasonable adjustments) in the case of Ring v Dansk Almennyttigt Boligselskab and anor. In doing so they have taken account of the UN Convention on the Rights of Persons with Disabilties. The ECJ also confirmed that a person does not have to be totally incapable of work to be disabled and that the origin of the disability is irrelevant provided the disability hinders full and effective participation in professional life and its effects are sufficiently long-term.

The ECJ went on to provide some helpful wording on what a reasonable adjustment is. In summary reasonable adjustments are aimed at eliminating the barriers that hinder the full and effective participation of disabled persons in work on an equal basis with others. A reduction in hours may be a reasonable adjustment if it enables the person to remain in work. It is for national courts to decide if the burden on the employer is disproportionate taking into account costs, the size of the employer’s business and its resources.

The judgment of the ECJ in Ring v Dansk gives us further guidance from the ECJ on the definition of disability. It ruled that disability is a limitation that results in particular from physical, mental or psychological impairments which hinders the participation of the person concerned in professional life and which is likely to last for a long time.

The EU is a signatory to the UN Convention on the Rights of Persons with Disabilities. The Convention states that disability is an evolving concept and that disability results from the interaction between persons with impairments and attitudinal and environmental barriers that hinder their full and effective participation in society on an equal basis with others.

Article 1 reads that:

“persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others”.

Article 2 refers to reasonable accommodations as:

“necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden… to ensure persons with disabilities enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms”.

The case which saw the national court make a referral to the ECJ deals with the cases of two Danish employees, Ms Ring and Ms Werge. Both were dismissed for incapacity resulting from back pain which had caused long-term absence. In both cases there was no prognosis indicating when they might be fit for work again. Ms Wenge had suffered a whiplash injury following a car accident. Ms Wenge suffered back pain. Danish law allowed their employers to reduce their notice periods to one month from three on the basis that their absence had endured for more than 120 days. The trade union HK brought disability discrimination claims in the Danish Maritime and Commercial Court. They argued that the employers had failed in the reasonable adjustments duty by failing to offer them reduced working hours instead of dismissing them. HK also argued that the reduced notice period was unlawful because the absence related to disability. The employers argued that the claimants were not disabled and that in any event there was no duty to offer reduced hours. The Danish court asked a number of questions in its reference to the ECJ. They were:

1. Whether a person is disabled if their physical, mental or psychological impairments mean they cannot carry out their work (or can only carry it out to a limited extent)?

2. Whether disability includes conditions caused by a medically-diagnosed incurable illness or a temporary illness which has been medically-diagnosed?

3. Whether a person is disabled where they have reduced functional capacity meaning they cannot work full-time even though they need no special aids to be able to work?

4. Whether a reduction in working hours is capable of being a reasonable accommodation?

5. Whether the Directive precludes a national law permitting a notice period to be reduced even if the absence is caused by disability or if the absence is due to the employer not implementing reasonable accommodations?

The answers were as follows:

1. The concept of disability does not imply the complete exclusion from work or professional life. A person who is fit to work, albeit part-time can still be disabled.

2. Disability is about hindrance not impossibility so it is not intended to be limited to conditions that are congenital or which result from accidents. The origin of the impairment is an irrelevance so long as it has the functional effect of hindering (on a long-term basis).

3. The concept of disability does not depend on the nature of any accommodations that might be made such as special equipment. These measures are the consequence of disability not an element of the definition of it. A person with reduced capacity can be disabled irrespective of how much they work.

4. The concept of reasonable accommodation must be given a broad interpretation. It is about necessary and appropriate modifications which do not impost a disproportionate or undue burden on the employer. RAs are about eliminating barriers which hinder the full and effective participation of disabled employees.

5. The ECJ held that the Directive does preclude a national law allowing a reduced notice period where the absence is caused by the employer not making reasonable accommodations. It is also contrary to the Directive if national law reduces the notice period without being able to show that doing so is a proportionate means of achieving a legitimate aim. Put simply this means that reducing the notice period will be discriminatory unless the employer can provide a means of justifying the conduct.

This case means that national courts should be looking to interpret the disability discrimination laws of their countries so as to give emphasis as to whether disabled employees are being given the opportunity to have full and effective participation in the workforce and to ensuring that barriers which hinder such participation must be addressed. Unfortunately the decision does little to impact the greatest barrier faced by disabled workers which is the attitudes, beliefs and, in the case particularly of mental health conditions, the stigma of disability.

In Walker v SITA Information Network Computing Ltd [2013] UKEAT 0097_12_0802 the Employment Appeal Tribunal (EAT) rejected the argument that the claimant’s obesity, on its own, satisfied the definition of disability under the Equality Act 2010 (the Act). However they went on to find that obesity is capable of amounting to an impairment, and therefore a disability, judging by the functional impact on the claimant.

Under the Act, a person has a disability if they have a physical or mental impairment and the impairment has a substantial and long-term effect on their ability to carry out normal day-to-day activities.

In the present case, an obese employee brought a claim of disability discrimination against his employer. The employee suffered from a wide range of conditions including but not limited to asthma, dyslexia, knee problems, diabetes, high blood pressure, chronic fatigue syndrome, bowel and stomach problems, chemical sensitivity, hearing loss, anxiety and depression, persistent cough, recurrent fungal infections, carpal tunnel syndrome, eye problems and sacro-iliac joint pains some of which were exacerbated by his obesity. The Employment Tribunal at first instance concluded that he was not disabled as they could not establish the exact cause of the physical and mental impairments.

On appeal, the EAT held that the employee was disabled because he suffered from a “functional overlay” of various mental and physical conditions which were accentuated by obesity. The EAT said that the proper issue for consideration by the Employment Tribunal was to look at the nature of the impairment rather than a condition which is medically recognised. On that construction, the EAT held that the claimant had both physical and mental impairments.

The EAT also recognised the fact that obesity may make it more likely that a person is disabled. This is an interesting judgment in the field of disability discrimination and one which practitioners should note given the level of obesity in our society. This decision could have far- reaching implications for those who have not been medically diagnosed but who suffer from impairments. Remember that under the Equality Act definition of disability tribunals are interested in functional impairment. It is the effect of a condition on the claimant that is important not the cause or the label.

This decision may be based on the fact that in the present case the claimant had so many significant impairments to his functional ability and we are certain that lesser cases will struggle to meet the definition of disability. However this case does have implications for employers who may be required to defend obesity claims which even if unsuccessful at hearing have the ability to cause a tremendous amount of nuisance.

In Jennings v Barts and the London NHS Trust the EAT has found that it would not have been a reasonable adjustment to exempt an employee from the Trust’s absence management policy.

The EAT upheld the decision of the first instance tribunal that there had been no failure in the reasonable adjustments duty following the dismissal of a disabled employee who was on long-term sick leave.

The EAT also found that the employer was not unreasonable in dismissing the employee in spite of a recommendation from occupational health that a phased return to work might be undertaken.

The facts of this case are that Mr Jennings worked in IT Support. He was with the Trust for 9 years before being dismissed in January 2008 on grounds of poor attendance due to ill health. He had intermittent health-related absences throughout his employment. The Trust rigorously applied its short-term absence policy and instituted disciplinary proceedings. A series of meetings were arranged, many of which were postponed by Mr Jennings for medical reasons. Some were held in his absence because he failed to attend. A first written warning was issued in October 2007. Without prior notice and in breach of its own policy the Trust then used that warning to commence a long-term absence procedure. At a final stage meeting under the long-term procedure a decision was taken to dismiss. Mr Jennings’s absences were causing pressure on his colleagues and his department. In spite of an OH report suggesting a phased return was appropriate and might be commenced there was a possibility Mr Jennings would not return to work and no date had been set. He was dismissed. His appeal against dismissal was unsuccessful.

A tribunal rejected Mr Jennings’s claims for unfair dismissal and disability discrimination. The tribunal held that Mr Jennings had “ample and fair opportunity” to engage in the process but failed to do so. The tribunal found that the OH report suggesting a phased return was optimistic and that in spite of it being what the employee probably wanted to hear (and needed to hear) Mr Jennings was himself pessimistic about a return. Mr Jennings also had no proposals to make about his employment or suggestions for redeployment despite having ample opportunity to participate. He also failed twice to return a stress questionnaire he had been asked to complete.

In relation to reasonable adjustments the tribunal held that it was not reasonable for the Trust to disapply its short-term absence policy in spite of the fact that it accepted that Mr Jennings was disabled for the purposes of the Equality Act. It was not reasonable for the Trust to have to tailor its policies to suit Mr Jennings.

The EAT also ruled that the employer could have “imputed knowledge” for the purposes of a reasonable adjustments claim even if the wrong diagnosis had been attached to the knowledge at the time. A diagnosis of PTSD was proffered which was subsequently relabelled paranoid personality disordder and major depression. There was still sufficient information from which to deduce that Mr Jennings was suffering from an impairment which was sufficiently long-standing and which interfered with his normal day to day activities so as to amount to a disability.

The EAT noted in this case that Mr Jennings’s absence record was “severely poor“. In an eight month period he had been absent for 100 days. The EAT saw no basis to interfere with the Trust’s conclusion that on the facts the absence could not be tolerated under the absence management policy. The dismiss was fair and no disability discrimination had occurred.

In Aderemi v London South and Eastern Railway the EAT has overturned the decision of the first instance tribunal that Mr Aderemi was not disabled because there was no impact from his impairment on his normal day to day activities. The EAT held that the tribunal was wrong to focus on what the claimant was able to do; its focus should have been on what he could not do. Additionally, the requirement to stand for long periods was capable of being a normal day to day activity on the basis that there are many jobs which require employees to stand at length. The EAT has affirmed that a broad approach to normal day to day activities should be adopted.

The facts are that Mr Aderemi was a station assistant. He suffered a back problem which meant that he could not stand for more than about 25 minutes at any one time during his nine hour shifts. He took time off sick and was eventually dismissed on capability grounds. He brought a disability discrimination claim.

The tribunal accepted that Mr Aderemi had a physical impairment but did not accept that it had a substantial impact on his normal day to day activities. The tribunal focussed on all the things Mr Aderemi was able to do rather than focussing on what his impairment prevented him from doing. The EAT was clear in overturning the decision that the focus must be on what the claimant cannot do as a result of the impairment. If the tribunal focussed on what the claimant could do they would never be able to establish whether there was a substantial impact on normal day to day activities. Their focus was entirely wrong. By looking at what Mr Aderemi could not do it was easy to demonstrate that there was a substantial impact.

The EAT also said that unless the impact was minor or trivial it must be treated as substantial i.e. there is no requirement to show how substantial the impact is as long as it passes the hurdle of not being minor or trivial. If the disadvantage to the claimant is a more than usual disadvantage it must be held to be substantial. The tribunal had failed to carry out a proper assessment.

The broader approach adopted by the EAT produced a significantly different outcome. The case has been remitted to be reheard by a freshly constituted tribunal.

The cases on the meaning of normal day to day activities have produced conflicting results. For further illustration see Chief Constable of Lothian and Borders v Cumming [2010] where it was held that participation in a profession and progression in a chosen career were not normal day to day activities. By contrast, in Paterson v Commissioner of Police of the Metropolis [2007] taking an exam to obtain promotion was held to be a normal day to day activity. In Goodwin v Patent Office [1999], the EAT overturned the decision of a tribunal that held that because a paranoid schizophrenic could perform normal domestic duties and get himself to work there was no impact on his normal day to day activities. The EAT (Mr Justice Morrison presiding) held that the focus must be on the things an applicant cannot do or can only do with difficulty rather than the things a person can do. Mr Goodwin could not interact with his colleagues due to auditory hallucinations. There was therefore an impact. Ahmed v Metroline Travel [2011] held that there was no impact on the normal day to day activities of a bus driver with a soft tissue back injury because while he could perform his job he could go to the gym and play with his children. In the light of Aderemi, Ahmed looks wrong.

In Sussex Partnership NHS Foundation Trust v Norris the EAT has overturned the decision of an employment tribunal that Miss Norris was disabled for the purposes of the Equality Act. The EAT held that a life-long immune condition which made the claimant prone to infection was not sufficient to establish that any infections would have a substantial adverse effect on Miss Norris’s normal day to day activities. The EAT also held that in spite of the fact that the condition was life-long there was no evidence of a likely recurrence (the condition was controlled by medication) and that even if there was a recurrence it would not have a substantial effect.

The facts were that Miss Norris suffered from Selective IgA, an immune condition rendering her susceptible to recurrent bouts of diarrhoea and repeated upper respiratory tract infections. During the winter she was more prone to infections when the general population was widely infected with bugs and colds. Miss Norris had in the past taken sickness absence due to weakness and fatigue caused by various infections but in the months leading up to the material time she was unable to demonstrate any adverse effect on her normal day to day activities. The EAT found her evidence unconvincing. The EAT held that increased susceptibility to infection does not automatically equate to a substantial adverse impact on normal day to day activities which is critical to establishing disability under the section 6 definition.

The decision demonstrates a number of useful points. Firstly, that it is for the tribunal, applying its mind to the medical evidence before it, to determine whether the claimant is disabled. It is a legal decision based on the medical evidence and not a medical decision. The evidence before the tribunal was not enough to persuade it that the susceptibility of the claimant to recurrent infection had a substantial adverse effect on her normal day to day activities. Secondly the decision demonstrates the reluctance of tribunals to find disability. This reiterates the point that mere sickness does not equate to disability (as established in Chacon Navas). Even though the claimant had in the past suffered substantial adverse impact on her normal day to day activities due to infection the tribunal still would not find that the condition had such an impact at the material time (October 2010). Although the decision on disability is a legal not a medical decision the claimant must be able to provide evidence that is capable of persuading the tribunal to find disability. In this instance the medical evidence was not powerful enough to persuade the tribunal that the claimant was disabled.

A paid volunteer is not an employee under the Disability Discrimination Act 1995 (‘DDA’) if there is not mutuality of obligation between the parties. In the case of Breakell v Shropshire Army Cadet Force the Claimant was a paid volunteer but the Claimant neither had to accept the work, nor did the Cadet Force have to provide it to the Claimant. As a result the Tribunal found that there was no mutuality of obligation between the parties and the Claimant’s claim for disability discrimination was struck out as he was not an employee under s 68(1) DDA. The EAT upheld the decision. This decision is likely to apply to claims brought under the Equality Act 2010 which repeals the DDA.

In the recent case of Martin v Devonshires Solicitors the EAT has held that an employer did not victimise its employee by dismissing her for raising several false grievances alleging discrimination.

The EAT had to decide in this case whether the dismissal of Ms Martin amounted to victimisation. The EAT had to decide whether the reasons for dismissal could be separated from the fact that her complaints alleged discrimination. Reasons for dismissing her included the serious, repetitive nature of the complaints and the employee’s refusal to accept that they were untrue and a consequence of her mental illness.

Ms Martin was employed as a legal secretary from early 2006. In January 2008 she submitted a grievance which claimed that her previous employer had disclosed to partners of Devonshires that she had brought a sex discrimination claim against it and as a result she had suffered harassment and victimisation. The investigation found that no one had been aware of her previous claim and that no discriminatory comments had been made. Devonshires found that Ms Martin’s grievance had been made in bad faith and maliciously. Ms Martin then went on sick leave for stress related symptoms and submitted seven further grievances regarding discrimination and victimisation. She submitted a claim to the Employment Tribunal. After seeking a report from an Occupation Health specialist Devonshires discovered that Ms Martin had a history of mental health problems. An additional report from Professor Hirsch, Consultant Psychiatrist found that Ms Martin suffered from a depressive illness with psychotic episodes and as a result suffered paranoid delusions.

Following her dismissal Ms Martin brought further claims for sex and disability discrimination, victimisation and unfair dismissal.

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The EAT has held in the recent case of JP Morgan v Chweidan that where a claim for disability related discrimination fails, the same facts should probably not support a finding of direct discrimination.

The Claimant was a banker who had become disabled as a result of an accident while on a ski trip with clients. Consequently the Claimant was unable to work the hours that he had previously which led to a reduced bonus and eventually his dismissal. The Tribunal found that the Claimant had not suffered disability related discrimination as the Claimant had been treated in a similar way to a comparator in the same situation but without a disability. The Tribunal did however find in favour of the Claimant in respect of direct discrimination under the same facts. The EAT overturned this decision as they could not see how a claim of direct discrimination could succeed on the same facts that a disability related claim had failed. The matter has been remitted to the Tribunal to consider whether there are additional facts to support a claim for direct discrimination.