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The Take of the Windy Barrister and Other Cases (About Disability Discrimination)

Under the Equality Act 2010, employers are required to ensure that they do not discriminate against or harass employees on the grounds of any protected characteristic. There are nine protected characteristics in total, and these include having a disability.  Legally, a disability is defined as having a physical or mental impairment, that has a ‘substantial’ and ‘long-term’ negative effect on your ability to do normal daily activities. 

As part of this, employers are responsible for ensuring that employees are not subjected to discrimination or harassment by other employees.  Our recent blog on supporting equality in the workplace cover more on how employers can support this.

But what does disability discrimination and harassment really look like? 

Two recent cases have helped to shed some light:

The first of these is that of Mohammed v Crown Prosecution Service(CPS), which was issued in December 2021. Mr Mohammed was a senior barrister for the CPS, and brought a case against his employer after a colleague asked him to stop breaking wind in the small office they worked in together.

Mr Mohammed sued for harassment, and told an employment tribunal that his repetitive flatulence was caused by medication he was on for a heart condition, and as such linked to his disability. He said the comment from his colleague Paul McGorry was “embarrassing” and violated his dignity. 

The employment tribunal did not agree, and found that Mr McGorry’s requests (including that Mr Mohammed step outside of the office, which he refused to do) were reasonable, and that whilst Mr McGorry was aware of Mr Mohammed’s heart attack, he did not know about the medication he was taking, or that flatulence was a side effect of that.

However, the court did decide that the CPS could have been more flexible with Mr Mohammed’s working patterns, including taking him off court duty, to account for his medical troubles.

By contrast, December 2021 also saw a ruling in the case of Mrs R Panesar v DX Network Services. Mrs Panesar was diagnosed with thyroid cancer, and her employer, DX Network Services, allowed her to work from home a few days each week due to her treatment, medication and side effects.  During this time, Mrs Panesar was subject to a number of comments from a colleague about this, including “So you’re having an extra cosy day at home this week?” and “I’m on holiday for the rest of the week, so you’ll miss the pleasure of my company until next week when you’re not on one of your cosy days.”. 

Mrs Panesar was made to feel upset and vulnerable as a result of the comments, but the employer sought to defend them as banter.  However, the employment tribunal ruled that there was no evidence that Mrs Panesar viewed the comments as such, and found that Mrs Panesar had been subject to harassment.

These cases both appear very different in the facts of each matter, and the findings of the employment tribunals.  However, there are some key themes for employers to consider that are relevant from each:

  • Employers have a responsibility to consider and put in place reasonable adjustments so that employees with a disability are not disadvantaged;
  • In doing so, it can be beneficial to discuss with the employee how they would like this to be communicated to their colleagues, including what information;
  • Employers have a responsibility to ensure that their employees (including managers responsible for making decisions about reasonable adjustments and other colleagues) receive appropriate information about diversity and inclusion.

If you are an employer who would like advice to ensure you are appropriately supporting an employee with a disability, or if you are looking to take a proactive approach around your diversity and inclusion policy and training, ViewHR are here to help.  Please contact us today for an initial discussion.