Two disability discrimination issues in one case: Reasonable adjustments not effective without employee consent and maintaining a higher level of pay may be seen as a reasonable adjustment

In G4S Cash Solutions (UK) Ltd v Powell UKEAT/0243/15/RN the EAT found that a reasonable adjustment to accommodate an employee’s disability was not effective without the consent of the employee.

The Claimant had worked in a number of engineering roles for many years. However, by mid 2012, due to back problems, the Claimant was no longer fit to perform the role which he was undertaking at that time. A new role was therefore created of “key runner” which involved the Claimant driving to various locations and delivering keys to engineers.

He retained his original salary in this position. He remained in this position until his employment was terminated. In May 2013 the Respondent considered discontinuing the role for organisational reasons. The Respondent told the Claimant at this point that they had never considered his role as key runner as permanent. However, they eventually decided to maintain the role as a permanent role, but stated that it would involve a drop in pay for the Claimant. The Claimant was not willing to accept this salary reduction and was therefore dismissed on medical grounds.

At first instance, the tribunal had held that there had been no contractual variation when employing the Claimant into the key runner role. The tribunal held that ‘an adjustment can be effective without the consent of the employee….and therefore it differs from a variation of contract, which requires consent’. It went on to state that there was not a variation of the contract in this situation because there was never a time when the parties had agreed that the contract was varied. The tribunal stated that any such contractual variation would have been supported by written confirmations that he had changed role. However, the Claimant’s case was still upheld on the basis that the failure to maintain the rate of pay in the key runner role was a failure to make reasonable adjustments and therefore he had been discriminated against by the Respondent.

The Respondent then appealed to the EAT against the decision and the Claimant cross-appealed on the finding that there was no contractual variation.

The EAT held that the tribunal had erred in law in holding that there was no contractual variation. An employer could not propose an adjustment which was incompatible with the terms of the contract of employment without the employee’s consent. The EAT held that there was clearly a variation to the contract in this case.

However, the EAT supported the tribunal’s finding in that the employer had failed to make a reasonable adjustment by not protecting the employee’s pay in the key running position. There was no reason why protection of pay could not be a reasonable adjustment. Therefore, the EAT held that since the Respondent’s appeal was dismissed, there was no need to remit the variation issue back to a tribunal.

This case is interesting for two reasons. First of all it shows the connection between reasonable adjustments and contractual variations. Following the EAT’s judgment, it seems clear that any reasonable adjustment that involves a change in the terms of the employment contract such as a change in pay or a change in duties will still require employee consent. In this case the employer arguably found itself in difficulties as they had not clearly stated from the outset that it considered this variation to be temporary, so changing it back or trying to cut pay led to difficulties.

Secondly, there is the finding that protecting a pay level could be a reasonable adjustment. However, this part of the decision must be viewed with caution. The case was decided on its facts. It had provided for the new key runner role to be met at full pay. This arguably illustrated that the salary was clearly a reasonable sum which the employer could afford for the new role in order to accommodate the employee. The case does not say, for example, that if the reasonable adjustment is moving someone to a part time role you have to keep them on full time pay.

It is clear from this case that when considering reasonable adjustments, the employer should be very clear at the outset what the terms are behind the proposed adjustment, and why. It should also make it clear whether it is temporary or permanent and, if temporary, what happens if the temporary period comes to an end without further agreement.




Law School Admission Council to Implement Sweeping Changes to Testing Accommodation Procedures For Test-Takers with Disabilities

On August 7, 2015, the U.S. District Court for the Northern District of California upheld significant changes to LSAC’s testing accommodation policies and practices. The court’s decision upheld almost all the changes to LSAC’s testing accommodation procedures recommended in a report by a panel of experts created pursuant to a 2014 consent decree that resolved allegations under the Americans with Disabilities Act in Dept. of Fair Employment & Housing (DFEH) v. Law School Admission Council, Inc. (LSAC), Case No. 12-1830–EMC (N. D. Cal). The District Court invalidated a limited portion of the recommendations (generally regarding timing for evaluating testing accommodation requests and how recent documentation in support of a request for testing accommodations based on mental or cognitive impairment must be) but upheld the bulk of the recommendations as written, including those that: categorize the type of documentation that will be sufficient for various types of testing accommodations requests, establish criteria for evaluating requests, require an automatic review by outside professionals before any request may be denied, and create an appeals process for those candidates whose testing accommodation requests are ultimately denied. LSAC will implement the upheld recommendations starting immediately for testing accommodation requests related to the December 2015 LSAT administration and later administrations.

Advice to employers to waive off liability of reasonable accommodation? What age are we in, the Stone Age?

Unfortunately, we see bad practices int he USA too. This article gives tips to employers on how to waive off liability for reasonable accommodation under the ADA, while keeping their job requirements.

Sadly, the court also sided with the employer in that case.

The brief summary is here:

A jury sided with the hospital, saying finding that Selena was not a qualified individual with a disability under the ADA because she could not perform the essential functions of the job with or without a reasonable accommodation.

Selena appealed, arguing that the hospital had modified her job description and scheduled her for light-duty work. Now it should be forced to stick with that.

Not so, said the appeals court, upholding the jury verdict. The court said that, contrary to Selena’s argument, “the mere fact that an employer voluntarily accommodates an employee’s disability by temporarily eliminating an essential function does not mean that the employer has irrevocably waived the essential function of the job.”

Our goal is to talk about these issues and not to let them go into practice. With these “useful tips”, we could easily fall back into an era where reasonable accommodation is just a phrase without any substantial role. And that is something we definitely do not want!

February 9, 2014

Ábel Gergő Kaszián, dr.


Disabled Employee is Moved to Light-Duty Work: Can She Demand to Stay There?

When employees suffer temporary disabilities, good employers make good-faith efforts to accommodate. Sometimes that includes placing the employee on a light-duty assignment and temporarily cutting out an essential function of her job. But can that employee legally demand that the light-duty job remainpermanently? A new ruling this week offers a good lesson – and some extra words to add to your organization’s job descriptions …

Case in Point: Selena worked as a medical assistant at a Washington, D.C. hospital and one of her essential functions was to perform triage on patients. This involves preparing patients to be seen by doctors, escorting patients to exam rooms and recording patients’ information on charts. She also worked on billing, assisted nurses, cleaned exam rooms, ordered supplies and answered phones.

Selena developed a nerve condition that prevented her from lifting more than 20 pounds and triaging patients. The hospital initially allowed Selena to modify her duties to periodically excuse her from performing triage. However, it eventually required Selena to return to full duty.

Selena still couldn’t do the triage work, so the hospital terminated her because she could not perform the essential functions of her job. In turn, Selena fired off an ADA lawsuit, alleging the hospital failed to reasonably accommodate her disability. After all, Selena said, she was able to work if she didn’t perform triage and it seemed like the hospital was doing just fine under the circumstances.

A jury sided with the hospital, saying finding that Selena was not a qualified individual with a disability under the ADA because she could not perform the essential functions of the job with or without a reasonable accommodation.

Selena appealed, arguing that the hospital had modified her job description and scheduled her for light-duty work. Now it should be forced to stick with that.

Not so, said the appeals court, upholding the jury verdict. The court said that, contrary to Selena’s argument, “the mere fact that an employer voluntarily accommodates an employee’s disability by temporarily eliminating an essential function does not mean that the employer has irrevocably waived the essential function of the job.”

The court added that, “an employee who cannot perform an essential function is not a qualified individual under the ADA, even if the employer previously chose to accommodate the employee by excusing the employee from performing the essential function.” (Hancock v. Wash. Hosp. Ctr., 2014 BL 3143, D.D.C., 1/7/14)

3 Lessons Learned … Without Going to Court

  1. Have job descriptions. Duh. It’s 2014 and if you don’t you deserve this lesson in court, too.
  2. Make sure all job descriptions specify “essential functions.” This will go far to shield your organization from ADA lawsuits.
  3. Have Disclaimers: “Temporary modifications to provide reasonable accommodations do not waive any essential functions of the job requirements.” This extra language on a new temporary light duty job description will make it clear to a judge, jury and all employees that your organization still needs an employee who can do the essential functions of the job with or without a reasonable accommodation. While you’re not waiving job requirements you are waiving off liability in 2014!


10 Things The World Can Learn From People With Disabilities

It’s an article about learning to value our life from people with disabilities. I would like to pick just one point, nr. 7, saying: Fitting in is overrated.

This is tightly connected with the notion of reasonable accommodation: the goal is not to fit in an employee with disabilities to a place of a person without any problems, the goal is to find a common point, which is beneficial for both parties, taking their special needs (both the employer’s and the employee’s) into consideration.

And remember: disability can happen to anyone (point nr. 4.)

February 3, 2014

Ábel Gergő Kaszián, dr.

No matter the type of person, there are lessons to be learned from them. People with disabilities are especially influential, as our hardships in life aren’t easily forgotten. We go through every day with determination and strength, which many people are bowled over by, with many secretly wondering if they could do the same thing.

People with a disabilities learn so much throughout their lives; life lessons that able-bodied people rarely get to experience.

Having a disability is definitely difficult, but it’s also one of the richest classrooms a human can experience, too. While these learning experiences are more profound experienced directly, there are some special tokens of wisdom we can pass along.

1) True happiness is really possible in a “broken” body.

Most say they would rather die than live with a disability, which makes me laugh. That’s because most able-bodied people can’t imagine being happy if their body was ever permanently broken. But the truth is that the human brain is very adept at transitioning into someone with a disability, if you let it, that is.

I thought I would never be happy again. But a few years after becoming paralyzed, I was happy. I found happiness through simply being alive, and through family and friends. I still wish I could walk again, but true happiness resides in me.

2) Patience can get you through almost anything.

You’re told as a little kid how important patience is and as an adult you come to see how true this really is. But when you have a disability, the patience required is at a whole new level. Very often we have to wait longer for all types of things and over time we become masters at honing in on it. Patience has even helped me emotionally get over my physical inabilities in certain occasions.

3) Accidents can and will happen.

When you hear about people becoming disabled through an accident, you always think it could never happen to you, and you almost look at it like a TV show or movie — something that could never be your reality. But the cold-hard truth is that accidents that cause disabilities happen every day, and they could likely happen to you or someone you know. The realness of this possibility is tangible in all lives, but when you have a disability you’re just a bit more aware of it.

See also: 7 Examples Of Discrimination Most People With Disabilities Experience Every Day

4) Disability can happen to anyone.

Maybe no congenital disabilities run your family, but say your first baby had cerebral palsy. It’s shocking suddenly finding yourself in the camp of either being disabled or the family member of one. The wisdom here is to never forget we are all imperfect physical beings, and to never think you’re exempt. We will all die one day and we’re all human.

5) Don’t sweat the little things.

Since having a disability can be rather stressful — broken wheelchairs, health insurance cuts, caregivers suddenly quitting — we learn early on to not let our stress levels get too high. If we did, none of us would make it past 40. We are confronted with crazy things all the time, so we learn to prioritize what is really worth freaking out over. That is why so many of us seem so zen-like. The movie is sold out? The restaurant has a two-hour wait? No biggie. It could always be worse.

6) Being different is an opportunity.

Most people don’t like being different or standing out. You have the outgoing Venice Beach type people of the world, but generally most people don’t want to be noticed. However, it’s not as bad as you’d think. In fact, when you live the life as someone who’s different, you learn right away it has its cool moments. You get to meet amazing people and get in on special opportunities. When you’re vanilla, no one notices.

7) Fitting in is overrated.

When you have a disability, you pretty much have a free-for-all card to be exactly who you want to be since fitting in with the “in” crowd is impossible anyways and embracing this can be one of the most freeing feelings ever. You don’t need to fit in to feel good about yourself or to think you “belong.” You belong to yourself, we know this. And that feeling is amazing.

8) You can’t judge a person by their looks.

You hear it all the time, don’t judge a book by its cover. From Stephen Hawking, a man in a wheelchair who can’t speak and is one of the smartest people in the world to Francesco Clark, a quadriplegic and CEO of a huge beauty product company, don’t ever think a disability is equitable to someone who is not impressive or successful. You never know what someone with a disability is capable of.

9) Life is short. Embrace everything.

Having a disability can also, unfortunately, have an impact on your lifespan. For many of us, living to 95 isn’t probably going to happen, which is why most people with disabilities have figured out the secret to life — enjoy each day as if it were our last. We all try to do this in our own way, but many of us fail. People with disabilities however, have gotten it down to an art form, from enjoying the sun rays to a warm cup of coffee, we know how hard life can be so we know how to embrace the good things when they present themselves.

10) Weakness isn’t always a negative

Just like the notion “it takes a village,” being weak or disabled isn’t necessarily a negative thing. When living with a disability, you learn to be OK with receiving help, and over time, many of us realize that we all need help in our own way, even athletes and the President of United States. It’s unavoidable and part of the human experience.

There’s no getting around it, having a disability is certainly a difficult ticket in life, but the life lessons to be had without question make it a near VIP experience. And hey, the free parking is a nice perk, too.

What wisdom have you learned from someone with a disability?


HIV is a disability under German anti-discrimination law

Érdekes, hogy úgy is a munkavállaló javára döntött a német legfelső bíróság, hogy valamennyire még megalapozott is volt a felmondás, elvégre egy gyógyszergyártó laboratóriumban nem alaptalan elvárás, hogy fertőző betegek ne dolgozzanak ott, ezért egyáltalán az is kétséges, tudott volna-e a munkáltató alkalmazkodni akkor is, ha mindent meg akarna tenni.

It is interesting to see that the German Supreme Court actually decided in favor of the employer, in a case where the termination of his job contract was somewhat reasonable. As for a pharmaceutical company, it is not an unrealistic expectation towards their employees to be without an infectious disease. And even if the employer would be ready to to anything to help the employee in keeping his job, it is doubtful that there is a possible solution.

February 01, 2014

Ábel Gergő Kaszián, dr.

An HIV-positive employee without symptoms does have a disability and can claim disability discrimination under The German Equal Treatment Act, the German Supreme Court held.

When an employer terminates the employment of such an employee because of the employee’s HIV infection, the dismissal is, as a general rule, discriminatory and thus invalid if the employer could have made it possible for the employee to perform his or her work, despite the disability, by implementing reasonable precautionary measures.

Ultimately, the judges ruled that the dismissal of the employee was a direct discrimination based on his disability. It was unclear, however, whether it was nonetheless justifiable. The previous instance decision, in the Berlin-Brandenburg Regional Labor Court, would thus still have to rule on whether the pharmaceutical company could have made it possible for the employee to perform his work as a laboratory technician in a “clean room” by implementing reasonable precautionary measures, despite the company’s internal rules prohibiting employment in case of an individual’s infectious disease.

The German General Equal Treatment Act (Allgemeines Gleichbehandlungsgesetz, AGG) provides protection against discrimination based on disability. Not only people whose (severe) disability is officially recognized have disabilities in terms of the General Equal Treatment Act, but  people are also deemed to have disabilities if “their physical functions, mental capacities or psychological health are highly likely to deviate for more than six months from the condition that is typical for the respective age” and if their “participation in the life of society is therefore restricted.” Therefore, employees’ chronic illnesses can lead to disabilities and dismissal of a chronically ill employee can constitute discrimination based on a disability.

Because the general protection against dismissal provided for under Sec. 1 of the Act on Protection Against Unfair Dismissal (Kündigungsschutzgesetz, KSchG) does not apply until the employment has existed for six months (so-called “waiting period”), an employer does not have to substantiate or justify its decision to terminate during this period of time. A dismissal during this period may, however, be invalid because it violates the General Equal Treatment Act if it discriminates against the employee, for example, because of a disability. The technician, therefore, claimed, that he had a disability and that the notice was thus invalid because it constituted discrimination against him because of his disability.

(German Federal Labor Court decision of December 19, 2013, case 6 AZR 190/12)

Source: Christopher Jordan, Anke Kuhn