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.





Protesters take part in a ‘Disabled People Against Cuts’ anti-austerity demonstration in London in July [Matt Dunham/AP]

London, United Kingdom – The UK has become the first country in the world to be placed under investigation by the United Nations for violating the human rights of people with disabilities amid fears that thousands may have died as a consequence of controversial welfare reforms and austerity-driven cuts to benefits and care budgets.

UN inspectors are expected to arrive in the country within days to begin collecting evidence to determine whether the British government has committed “systematic and grave violations” of the Convention on the Rights of Persons with Disabilities (UNCRPD).

The convention, which came into force in 2008, codifies the rights of disabled people to freedom, respect, equality and dignity.

 UK benefit cuts hit disabled people hardest

“It is absolutely shameful that we are the first country in the world to be investigated,” said Linda Burnip, founder of the campaign group, Disabled People Against Cuts (DPAC), which submitted evidence to the UN over several years to trigger the inquiry.

“The UK was at one stage doing quite well in meeting disabled people’s human rights and supporting people living independently, but all of that has been stripped away.”

Disability rights activists joined large crowds of anti-austerity demonstrators on the streets of Manchester last week as British Prime Minister David Cameron’s governing Conservative Party staged its annual conference in the city against a backdrop of angry popular protests.

Some pushed skeletons in wheelchairs holding signs reading: “Declared fit for work” – a reference to the government’s widely criticised “work capability assessment” scheme, under which hundreds of thousands of people who previously received disability welfare have seen their payments stopped and been told to find jobs.

“We are highlighting the fact that these policies have effectively driven massive numbers of disabled people to their deaths. They have either pushed them to suicide or made them so ill when they’ve been found fit for work, they’ve actually died within days or weeks,” Burnip told Al Jazeera.

“People are living in fear on a daily basis of either being sanctioned and left with no money, or that their care will suddenly be cut, and they’ll be trapped in their homes, and they won’t be able to go out and do anything any more.”

RELATED: Out in the cold: The UK’s social housing emergency

Figures released by the Department for Work and Pensions (DWP) in August showed that 2,380 people died between 2011 and 2014 shortly after having their benefits stopped. A further 7,200 people also died after having their benefits reduced and being put in groups to help them prepare for a return to work.

“We urgently need an enquiry into the government’s back-to-work regime. These disturbing findings cannot be swept under the carpet. The fact that more than 80 people are dying each month shortly after being declared ‘fit for work’ should concern us all,” said Frances O’Grady, the general secretary of the Trades Union Congress.

Critics argue the assessment system, under which recipients of benefits are regularly re-assessed, puts disabled people under “unendurable stress” and discriminates against those with mental health issues and fluctuating conditions.

A coroner’s report into the 2013 suicide of a 60-year-old man with a long history of severe depression – brought to public attention last month by the Disability News Service – ruled that being found fit for work had triggered his decision to end his life and advised that changes to the system were necessary to prevent further deaths.

Other reported cases include people declared fit for work after being diagnosed with terminal illnesses or degenerative conditions or while receiving treatment for cancer or other serious health problems.

Others are reported to have starved to death or frozen in their homes after having their benefits stopped.

Paula Peters, a disability rights campaigner diagnosed with rapid cycling bipolar disorder, said she knew of many others who had taken their own lives as a consequence of being found fit for work or losing access to benefits.

She said the stress of the process had affected both her physical and mental health.

“It is causing harm, it is causing destitution, and it is causing unendurable stress. It is horrible, absolutely horrible,” Peters told Al Jazeera.

“It’s had a devastating impact on me. I’ve lost so many friends to this. They have taken their own lives in awful circumstances. You see every day on social media somebody else has gone. Somebody else has died because of the stress and the fear and the degradation of the process.”

RELATED: 250,000 rise up against austerity plans in the UK

Iain Duncan Smith, the minister responsible for welfare reform since 2010, argues that the government’s changes to the system are incentivising work, tackling a deep-rooted culture of benefit dependency, and supporting hundreds of thousands of disabled people in finding jobs.

Addressing the Conservative Party conference last Tuesday, Duncan Smith denounced the “bile and hatred” of protesters gathered outside and said the party’s right-wing welfare philosophy was “rooted in human nature, not utopianism nor empty pity”.

But his department, which in August was found to have faked case studies of people it claimed to have helped back into work, has faced sustained criticism over the impact of cuts and reforms on the most weak and vulnerable, and alleged mismanagement of the process.

A study by the Centre for Welfare Reform in 2013 found that disabled people had been affected nine times more on average by austerity cuts, while severely disabled people were 19 times worse off.

One important scheme, the Independent Living Fund, which funded full-time care for thousands of severely disabled people, was shut down earlier this year with the government passing responsibility for care provision onto local councils – themselves facing severe budget cuts.

 UK austerity cuts blamed for weather havoc

In one case, a woman whose round-the-clock support had previously been paid for by the fund was, instead, offered adult nappies by her local council to “increase her independence” in lieu of full-time care.

RELATED: Readying the fight against UK Conservative rule

A Department of Work and Pensions spokesperson told Al Jazeera the government continued to spend $76bn a year in support of disabled people and said a $121bn “welfare safety net” was still available to millions of people in need.

“We strongly reject the allegations made by DPAC. The UK has a proud record of furthering the rights of disabled people, with the principles of the UN Convention at the heart of its approach. People are getting more tailored support to return to work instead of being written off on long-term sickness benefits as happened too often in the past.”

But with further rounds of welfare cuts scheduled in 2017, Paula Peters said she believes disabled people fighting for their lives have been left with no choice other than direct action.

In June, DPAC activists, including some in wheelchairs, clashed with police in parliament as they attempted to force their way into the House of Commons. Several were also arrested in July during a protest against austerity in central London.

“I’ve faced police on horseback in riot gear, but when you’ve got nothing left to lose and they’ve taken everything from you, then the fear goes away,” said Peters.

“Our attitude is that we are entitled to raise our voices in anger. It helps you cope by helping others and giving others the information they desperately need. And it is also to give other people hope that disabled people are fighting back and empowering them to get involved and raise their voices.”

Follow Simon Hooper on Twitter: @simonbhooper


Minister urges coach access for wheelchairs

More than one third of bus stops used by the UK’s main coach operator cannot accommodate wheelchair users, despite its fleet being able to carry them.

National Express stops at almost 1,200 bus stops across the country, but 436 have so many restrictions they prevent drivers from using their lifts to carry wheelchair users aboard.

This means that some disabled people are left unable to travel by coach.

Disabled People Minister Mark Harper says the situation is “unacceptable”.

He is now leading calls for councils to make bus stations and stops more accessible.

Obstacle course

“It is simply unacceptable that in the 21st Century more is not being done to make coach stations and stops more accessible to disabled travellers,” he said.

“There is little point in making sure buses themselves are accessible if those who operate the places where people are collected from are not doing what they can to help.

A wheelchair user boards a coachThe lift for wheelchair users requires a clear space stretching out three metres from the coach

“This isn’t just about doing what’s right – it’s also about recognising the business case – as disabled people and their household have an annual spending power of £200 billion.”

The entire National Express fleet of 550 vehicles is wheelchair accessible – meaning wheelchair users can be carried at the front of their coaches.

Wheelchairs are brought on to the coach using a lift which requires a clear space for a three metre extension from the side of the vehicle.

But at a third of bus stops, objects – such as lamp-posts, bollards, railings, public seating or signs – prevent the lift from operating.


‘Very frustrating’

Wheelchair user David Redgewell, 47, from Alvestone, in Gloucestershire, said the lack of accessibility at some bus stops had forced him to change buses and added many hours to his trips.

“A business trip from Bristol to Perth took 14 hours instead of 12 because I had to change in Glasgow as the coach parking bays in Perth were too shallow for the lift to be used,” said the disability issues campaigner.

“When I went from Bristol to Ilfracombe in June, I had to take a detour via Barnstaple because Ilfracombe doesn’t allow a disabled ramp to be lowered. And in London I couldn’t get to Earls Court directly because there isn’t access for the coach lift.

“It can be very frustrating and annoying because often the coaches are accessible, but the bus stops are not.”


‘Crucial action’

Tom Stables, National Express managing director said: “We carry millions of passengers every year and are absolutely committed to getting people where they want to go whatever their circumstances.

“We hope that with the backing of the government that more station and bus stop owners will listen and take action in this crucial area.”

Local authorities have a legal responsibility to comply with the Equality Act by making reasonable adjustments for disabled travellers.

Some 84% of buses and coaches in England meet new regulations to make them properly accessible to disabled people – ahead of a deadline by 2020.

Virtually all London’s 8,500 buses are now fully low-floor accessible.


Action urged on liberty of disabled

Campaigners want Government action after a “landmark” Supreme Court ruling on the rights of disabled people living in care facilities.

Charities said Supreme Court justices had provided clarity about when disabled people were being deprived of liberty under the terms of mental health legislation.

They called on ministers to issue guidance to care providers and local authorities in the wake of the ruling.

“We now have an acid test from the highest court in the land clarifying what counts as a deprivation of liberty,” said Mark Lever, chief executive of the National Autistic Society, who described the ruling as a “landmark”.

“We call on the Government to urgently issue clear guidance to care providers and local authorities so that they can implement this judgment.”

Supreme Court justices today ruled that three disabled people who lived in care facilities had been “deprived of their liberty”.

Lady Hale, deputy president of the Supreme Court, said in the ruling that disabled people had the same human right to “physical liberty” as anyone.

And she said the fact that disabled people might be deprived of liberty in care facilities where living arrangements were comfortable made no difference.

She said a “gilded cage” was “still a cage”.

Seven Supreme Court justices had analysed the cases of two sisters with learning difficulties and a man with cerebral palsy at a hearing in London.

The did not identify any of the people involved, b ut they said the local authority with responsibility for the sisters was Surrey County Council and the local authority with responsibility for the man was Cheshire West and Chester Council.

Justices said they had considered criteria for judging whether living arrangements for mentally incapacitated people amounted to a “deprivation of liberty”.

They said such deprivation had to be authorised under the terms of the 2005 Mental Capacity Act and living arrangements subjected to regular independent checks.

Campaigners said the ruling followed a recent report by a House of LordsSelect Committee, which concluded that the Mental Capacity Act was failing.


Is disability a political issue?

Next year, in fact in fourteen months time, there will be a general election. In the build-up, the lobbying and posturing, the canvassing and polling, the TV reports and the party manifestos, will disability figure at all?

‘Of course it will!’ I hear the resounding response, ‘just look at the current activity around benefits and disabled people; it must be an election issue.’ Quite rightly, the benefits issues need challenging and the campaigners doing so are to be congratulated and, actually, thanked. But (and this is no criticism) they are campaigning on benefits as they affect disabled people, not on disability per se.

For the sake of clarity, when I write about disabled people I do so within the social model of disability[1]and by that I mean disabled people are those who have an impairment and who encounter barriers in society that do not take account of that impairment. A simple example often used is the provision of ramps where there were only steps, or Braille menus in a restaurant. Logically, if you’re not experiencing barriers you’re not disabled: this may seem like semantics, like playing with words, but stay with me . . . .

Let’s imagine two disabled people – one is an Asian woman, blind due to diabetes, the other is an English deaf guy with mental health issues: I’ve described (very basically) their impairments, their gender and their ethnic origins, and they may experience barriers – or discrimination – on one or more of all three fronts. Let’s have them going to lobby their local parliamentary candidates two months before the general election, how might this play out? The woman might be asking, for example, why none of the election campaign leaflets are in Braille or large print, or maybe – having come on the tram – why the information at the metro stop is visual but there is no audio? She is asking about disability, not about her impairment. The guy, well to be honest, unless he’s taken a BSL[2] interpreter with him there’s probably no likelihood of meaningful communication: this is a further example of disability in practice.

And this parliamentary candidate, what are the odds that they are themselves a disabled person? And does it matter? Well, 78% of disabled people have said that having more disabled politicians would have a positive effect on the negative attitudes they experience[3], whilst the number of MPs who have declared themselves as disabled is not actually known. Figures on the numbers of disabled people who stand for election – either locally or nationally – are not collected. See Wikipedia however for a list of physically disabled MPs (sic) dating back to 1529![4] The Speakers Conference[5] which reported in 2010 on Parliamentary Representation concluded that ‘many of the barriers for disabled people are physical and practical and among their recommendations was that, at national level, the political parties should publish their campaign literature in a variety of formats.’  As a direct result the ‘Access to Elected Office’[6] fund was launched in order to encourage more disabled people to come forward as prospective parliamentary candidates (PPCs). If you did put yourself forward for selection, let’s assume you’re a wheelchair user, do you think the local party meetings will be accessible or will they be in some upstairs room over a pub? Will asking for access affect your chances of being viewed positively as a candidate?

And how about voting, is your local polling station accessible? Has election material from the local political parties been accessible to you, have their meetings? In short, are they addressing disability? Perhaps, in the run up to next years general election, you can ask them about disability: you could explain to them what it means, because it’s highly likely they will talk to you about impairments, and treatments, and the NHS, and rehab and services, and so on, because these are important issues, of course. But also important is transport, housing, education, employment, independent living, and so on: our inability to access these is down to disability, not impairment.

How can you best inform your prospective MP? What information can you give them? Well, this article (and it’s links) might be a useful start for a discussion on what – if they win the election – their party is planning. Also useful might be the Disabled People’s Manifesto ‘Reclaiming Our Futures’[7], which has been drawn up by a consortium of disabled people’s organisations, is still up for consultation and which does include such matters as education and independent living.

The truth is that disabled people are not very visible in politics, and our issues are not addressed in a way that makes sense to us. Maybe this is part of the reason why the ‘austerity’ programme has targeted disabled people – we’re not seen as politically active and we’re therefore vulnerable, ‘easy pickings’ if you like. So, here’s a thought – why not go to your MPs / prospective MPs surgery and ask them what their party plans for disabled people if they win the election? What it plans to do regarding disability?  And let us know what they say!

Source: Lorraine Gradwell

Francesca Martinez: A leading light fighting welfare cuts for disabled people

The debate scheduled for 11.15am in Westminster on Thursday represents a significant parliamentary milestone – the first debate secured by disabled people for disabled people.

The motion, set down by the War On Welfare (WOW) campaign group, calls for an assessment of the cumulative impact of the government’swelfare reforms on sick and disabled people, and demands an immediate end to the work capability assessment (WCA), the test that determines fitness for work.

Comedian Francesca Martinez has spent a year campaigning to get the 100,000 signatures required to trigger a parliamentary debate on the issue, motivated by concern that the true impact on disabled people of the government’s welfare reform programme has never been measured.

Although the fact that the debate has been called represents a considerable triumph, Martinez is concerned the government may try to sweep the event under the carpet. “If the government does try to brush it aside, it will leave you thinking, ‘well, what democracy is there?’,” she says.

Mike Pennington, the minister of state for disabled people, will speak in the debate but MPs are not obliged to attend or turn up to vote. The petition has been supported by 250 MPs, who include only three Liberal Democrats and no Conservatives.

Martinez, who has a well-established career as a standup comedian, and has cerebral palsy, agreed to get involved with launching the WOW petition because of her anger about the direction of welfare reform.

“It seems we’re living in a country at the moment where if you do get sick or if you do become disabled, not only have you got to deal with those challenges but you have to deal with the fact that the vital safety net that society provided for many decades is being eroded away,” she says. “Disabled people around the country are dying from these policies.” She cites the figure of 10,600 people who died within weeks of being found fit for work by a WCA test. “Many more are falling into destitution and being subjected to humiliation and being targeted in a really awful way.”

She contests the argument that welfare reform is driven by a need to cut costs, and points out that since so many people are going to court to appeal against decisions to remove benefits, the savings are negligible. “We have to challenge the government rhetoric on the money-saving argument,” she says.

Martinez was granted lifetime eligibility for disability living allowance (DLA) in recognition of the fact that her disability means she needs extra support to live independently. Under the reforms, her eligibility will be repeatedly reassessed, although improvement in her condition is a medical impossibility.

“Reassessing people like me every few years is going to cost millions and it is actually entirely wasted money,” she says. She points to the government’s willingness to declare money no object in helping victims of the recent floods as further evidence of the weakness of the argument that welfare needs to be reformed on cost grounds. “We need to correct the distortion that there’s not enough money in this country. There’s more than enough money – there’s just not the will to spend it.”

Announcing its reform of DLA in 2010, the government said it wanted to cut the cost of the benefit by 20% – a decision that Martinez says will eventually prove more expensive because people will find it harder to get the support they need to work. Her early success as a comedian rested on the fact that DLA helped to pay for a car, allowing her a degree of independence she could never otherwise have had.

“Already, with the benefits, a third of disabled people live in poverty. Now that figure is just going to rise,” she says. “Half of disabled people are unemployed. For a lot of people, these cuts mean that they can’t leave their house. They will be making decisions like: do I eat, or do I pay for a taxi to get me out of the house? Also many disabled people need extra support to be able to work. So, ironically, by taking away this support network, disabled people are going to be less able to go and contribute and live full lives. On every level it doesn’t make sense. You’re going to make disabled people more vulnerable and less independent.”

The debate is timely, coming a week after the announcement by the private company, Atos, contracted to carry out fitness for work assessments, that it was seeking an early exit from the contract, after criticism about the accuracy of its testing process and reports that staff had been sent death threats.

The company’s retreat provides little cause for celebration, Martinez says. “Atos is not the key problem; it is just going to be replaced by another company willing to carry out the government’s work.” She would prefer people to be assessed by their GPs for eligibility to sickness benefits. “A private company is far more likely to adhere to targets than a doctor will. You want private companies out of this. You need profit out of this.”

She is angry at the way that support for disability benefits has been reduced by a campaign of media misinformation. She dislikes the way the very word “benefit” suggests something positive and extra, rather than simply a levelling of an unequal playing field. “I hate the word benefit because it suggests a bonus,” she says. “I get benefits because I can’t walk out of my house on my own. I can’t make myself a sandwich. If you say to someone: ‘would you rather get £90 a week, or would you rather walk?’ No one is going to opt for the £90 a week.

“The rightwing press has had a huge impact on demonising claimants and demonising disability and disabled people as burdens on the state – useless parasites; we have seen a sustained attack over the last few years. Look at the increase in the use of words like ‘scrounger’ in relation to disability in news stories – there has been a three-fold increase. The media is rigorously pushing the government agenda on this. It has a profound effect on public perceptions of disabled people.”

She points to the proliferation of stories about fraudulent claimants. “Fraud is a non-issue, tiny, under 1% in these benefits. We never hear the truth. The truth is most disabled people really want to work but can’t, and all they ever think about is: ‘I wish I could work; I wish I could provide for my family; I wish I could feel like a fulfilled active citizen’. It’s not a dream of disabled people to sit at home doing nothing. I think that’s something we’ve really got to shift in terms of perception.”

Martinez hopes the parliamentary debate will be a chance for Labour to clarify its position on welfare reform. Aware that the WCA was launched by Labour, she knows the party’s support for her campaign is far from guaranteed.

“Labour clearly aren’t going to play the role of knight in shining armour. They are not going to change anything unless there is huge reason to do so. I don’t know where [Ed] Miliband stands on any of this – but slowly we are getting it on the agenda. I’d like the debate to make the top guys in Labour take this on seriously, for Miliband to say: ‘if we get to power, we will scrap the WCA’,” she says.

Source: Amelia Gentleman

Finer points of human rights

People in the Isle of Man have a whole raft of rights they don’t know about according to a Manx advocate with a special interest in human rights.

Paul Beckett who is currently studying for a masters degree in the subject was speaking to an audience of deaf, blind or partially sighted people at the Manx Blind Welfare Society recently.

Some provisions in the 1950 European Convention on Human Rights were formally enacted in the Human Rights Act of 2012 and can therefore be relied on in the courts.

But in addition to this, there are provisions, some contained in the International Covenant on Civil and Political Rights 1966 (ICCPR), the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) and the United Nations Convention on the Rights of the Child 1989 (UNCRC), which can also be relied on in court despite not being incorporated into an act of Tynwald.

This is not generally known by the Manx public nor is it something with which many advocates or even the judiciary are familiar, Mr Beckett said.

‘I am an advocate and as such I do not make political statements. The failure to incorproate the provisions is simply an oversight, it’s not malicious,’ he said.

However, he said anyone wanting to challenge an official decision using the judicial review process could still rely on the provisions to support their application.

The Disability Discrimination Act 2006 was never brought into force but there is a range of rights which already apply under these conventions and covenants.

‘These rights are not aspirational: they apply under Isle of Man law by virtue of the four instruments having been ratified on behalf of, or by, the Isle of Man,’ he told the audience.

The Disability Discrimination Act is now to be repealed and replaced with new legislation based on the Equality Act 2010 from the UK. The new act should be in place by 2016.

But in the meantime the various conventions and covenants do offer rights beyond what is contained in existing acts.

For example, he told the audience articles five and six of the ECHR give people a right to be told why they are being arrested and have any charge filed against them explained. In the case of a deaf person, this could mean that a sign language interpreter needs to be engaged.

Rights which might be enforceable under the ICCPR include being equal before the courts, having access to public services and being free from discrimination. Similarly he said the ICESCR deals with equal rights in education and work and the UNCRC deals with freeedom of expression and freedom from discrimmination.

The island’s deaf champion Gareth Foulkes told the audience a report, called A Life Less Equal, on the experience of deaf people in the Isle of Man was completed in 2011. The report said: ‘In many areas deaf people in the isle of Man have a much worse quality of life than hearing people.’