New ruling extends disability discrimination to intermittent conditions

Aaah my point exactly it is a 'transitional ruling' accepting that everyone will be, at some point in their life, charactorised as 'temporarily' not "fit for purpose" or disabled to some degree requiring rehabilitation and one of those new fanggled fings called a "Well-Note" presumably better defining their limitations rather than a sick-note stating 'not fit for work' !

Problem remains, for the time bien, that in a 'them & us' world there is going to have to be a significant shift or realignment in mind set if "truth & reconcilliation" is going to provide both a 'reasonable and equitable' foundation on which to build a genuinely open relationship with 'positive regard' and mutually understood and shared goals.

Hence the rational for completing risk assessments of the 'foreseeable' consequences of omission to prevent or mitigate a defined risk with 'reasonable & practicable' adaptation or intervention in terms of awareness of risks and training.

A reasonable definition of disability is already contained within the DDA that suggests a condition likely to significantly affect the individual for 'up to 12 months or more' that will now include life-long yet normally well managed and/or medicated conditions that may nevertheless from time to time affect the functionality or fitness of an individual to perform normally.

The law has simply 'adapted' to accommodate the unreasonable officious bystander who in such a case will seek to apply the 'letter' rather than the 'spirit' of the law founded in "equity"...

The professional 'objective risk assessment' should still be able to deal with the more 'subjective' assessments of the ill-informed accepting there will always be the half empty woe is me sorry for themselves individual who does not want to accept what is good for them and is as a result probably at increased risk to themselves in the first place.

The law may be an ass, it may be slow to adapt but, usually over time there is some balance where there is uncertaintly that may have nothing to do with justice in it's application nevertheless it is by and large equitable and does leave the courts where necessary to set the standard of reasonable.

If you then add in the effect of "may be fit for some work" as advised by a GP these subjective illnesses become an even bigger problem for DDA compliance.

GPs should only advise on work and health when 1) the illness is entirely objective, 2) the effect on work capacity is entirely objective and 3) the prescribed interventions are time limited. All other cases should only be assessed by competent persons.

occupational health professionals are competent persons but even in that group there are many who have too little understanding of psychosocial issues.

The law is an ass because it presumes medical interventions, risk assessments and opinions are objective. This is an unsafe presumption.

Employers and unions should be united in recognising the damge to be done by this presumption and should be united in seeking more wisdom from the courts and regulators. Unfortunately the subject is a little bit too complex for those who are comfortable with sound-bite politics.

As I was getting to your last paragraph my thoughts were the law is an ass.......then you took the words out of my mouth!!!!

How many times have I heard that said before.........isn't it time that these people who have so much power stop and think before they speak? The consequences on peoples lives after they rule are unimaginable but of course they will never be in a position to even contemplate what thats like as they live in another world. I have lost faith in the whole english justice system - its for the rich and privileged only.

This ruling will have a profound effect on the DDA and its interpretation. It is well argued, and it is clear to see why the decision was made for Mrs Boyle. But there are much wider issues.

Prior to this ruling, it is thought that around 50% of the population were covered by the DDA. Now, the scope has widened significantly. It is important to read the judgment, and the examples given by their lordships.

For example if a doctor decides someone should be on long-term medication to reduce the risk of a serious event, we should consider that event 'could well happen' so they are ‘likely’ to develop that condition and should be considered disabled. Medicine is moving in the direction of blanket treatment of large numbers to avoid a small number having for example a heart attack or a stroke. There is much debate at the moment about whether you should treat 1,000 patients with drugs in order to avoid one of them having a heart attack at some point in the future. There is strong argument to treat everyone over the age of, say 40, with drugs to reduce these risks.

Furthermore, if we look at active sportsmen and women who sustain injuries that affect their mobility or physical capability significantly for several weeks while they recover. They recover to compete at top level (Olympics, premiership football, international rugby etc.), but it ‘could well happen’ that they will have further problems at some point in the future. So now they would all be considered ‘disabled’.

Overall, it could be argued that nearly all, if not everyone, would now be considered ‘disabled’. Is this such a bad thing? If it results in everyone getting adjustments that are reasonable for the employer to make and help the employee work effectively and efficiently, it can only be a good thing. However there is a substantial knock-on effect. Around half the clients I see in clinic either believe they have a medical problem when they don’t, or believe their problem is worse than it is. This, too, does not have to be a problem unless it leads to a change in behavior. If they avoid exercise, or avoid doing things they enjoy, it can lead to medical problems later in life and a reduced life expectancy as well as a less enjoyable and fulfilling life.

It can be difficult for doctors to explain to patients that while they have symptoms, they do not have a significant underlying disease process, that they are normal and are fit to do anything they like. If the patient has been told that legally they are disabled, it is likely to be even harder to explain this. The patient’s view, understandably, would be ‘either the judge or the doctor is an idiot’. It will be particularly difficult for them to understand that both are right.

The Prison Service have a policy for ‘serious underlying medical conditions’, and state that if the DDA applies, the person automatically has a ‘serious underlying medical condition’. I have just had a particularly difficult time trying to explain to a manager that someone has no underlying medical condition, but because the DDA probably applies, they automatically have a ‘serious underlying medical condition’ , but they are fully fit.

For society and the employer it could cause major problems. If employees believe they have a problem and expect adjustments as a result, but there is no need for these adjustments on medical grounds, this can cause significant difficulties for employers. It can lead to unnecessary and costly adjustments, it can lead to conflict, excess sickness absence, litigation and loss of employment. When we analyse the cost of these issues in the workplace (over £100bn a year), it would not surprise me if the cost of this one judgement to society as a whole amounts to an additional £1bn or more a year.

Where there is a limited ‘pot’ of resources to support ‘reasonable adjustments’, but everyone now wants adjustments, there is likely to be less for those who really need them. Those with greater disabilities are likely to suffer as a result.

Overall, I don’t think that this judgment will be particularly helpful. Most people would regard a judgment that effectively states nearly the entire population is disabled is silly, and brings the law into disrepute.

Exactly.....consistency would be nice....all I heard at my tribunal was "well of course we must bear in mind the new ruling in the Malcolm case"! Only about 15% of disability discrimination cases win at tribunal and I am one of those that have lost!

I might add on a pure technicality but may be able to take it further. Judges do not like the above cases and certainly in my case seemed very biased but you cannot appeal that! Ignorant is not the word....I think they know exactly what they are doing, the point is that seems to be the very thing that takes you to sit in front of them in the first place!

The Lordships on duty that day were ignorant dinosaurs.

It's a shame that their Lordships weren't in a similarly sensible frame of mind when they dealt with the Malcolm case isn't it? A consistent direction of travel would be much appreciated by disabled people I am sure!

Sheena its not just Dinosaurs it really down to ignorance one of our directors didn't know what DDA was; well he has been a manager for yrs before becoming a director what excuse have people like this got !!!

This is really good news i have been arguing this point for yrs.

I know that since my employer changed it's strategies and introduced various working practices that there has been an increase in DDA complaints.

In the past the local HR and H & S teams dealt with correctly but they have now been disbanded and managers without sufficient training who have to decide what to do forget all about DDA.

I think what they were trying to cover was for example a person who has diabetes and through medication diet etc manages to control the symptoms however over a period of time due to lack of reasonable adjustments their diabetes becomes problematic again or someone who has a breakdown and then has delicate mental health for the rest of their life and manages to keep everything under control for months or years until undue pressure is put on them.

However I am only guessing as I thought this was already covered and therefore all this is doing is reminding those dinosaur bosses who do not action DDA correctly that it covers this sort of thing as well.

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Silly Billies, you would think after 32 years + or - '9' they would have had a little 'Positive Regard' for their employee who had clearly performed perfectly well over the period with reasonably practicable adaptation or, by the sound of it, in happy coincidence that panels surrounded her work area accommodating her reduced capacity to speak out loadly of even normally against background noise.

Be interesting to see how this rulling is interpreted by the 58% of DSE users who experience the so called temporary yet debilitating affects of Screen Fatigue that may or may not be mitigated to some degree by PPE prescription glasses !

Does this rulling impact on the way other 'self-managed or medicated' insidious workplace stress related disabilities directly or indirectly debilitating occupational health, wellbeing and/or performance ?

Is it more " likely " than not that some coercive even toxic workplace cultures are going to find employees self-management of stressors including absenteeism and presenteeism as coping strategies using the disability card in constructive dismissal claims after the fact ?

Especially where the elf-an-safety burden of proof has shifted from 'probably' to "could well happen" in the eyes of a 'reasonable' man or less officious bystander ?

Or does it just mean that employers are going to have to listen more, get of their high horse and replace feedback-blindness with action in order to establish "contributory neglegence" in any claim made by a dumb employee who has failed to responsibly report any occupational health issues ?

Or does it simply just mean that we are "all disabled" at some time in our lives if not perminantly (upto a year or more) and that anyone temporarily functionally impaired may be protected from discrimination founded on that impairment ?