Discrimination arising from disability occurs where both:

• An employee is treated unfavourably because of something arising in consequence of their disability rather than the disability itself (i.e. lateness or absences)
• It can’t show that the treatment is a proportionate means of achieving a legitimate aim

The background

Ms Wickers was an Optical Assistant at Specsavers.

She’d received informal and formal warnings because of lateness, and her failure to comply with the sickness absence notification procedure.

During a subsequent appraisal, she became tearful and was advised to see her GP.

Ms Wickers informed her employer that she was struggling with depression.

The Director responded by saying that he had no sympathy for “this kind of thing”. He went on to say that “everyone gets depressed sometimes, you just have to pull yourself together.”

Following a further incident when Ms Wickers was late for work, she was informed by a Director that disciplinary action was to start.

This was despite Ms Wickers telling him that she was on medication and had been diagnosed with depression.

Ms Wickers resigned after being told it was likely she would be dismissed.

She brought a successful claim for disability discrimination in the Employment Tribunal.

The decision

The Tribunal held that the Director’s unsympathetic approach to Ms Wickers condition led to discrimination arising from a disability under the Equality Act 2010.

Ms Wickers had in fact been late on the day in question because she overslept due to her medication.

And the effects of the medication on her sleep was deemed to be something arising from her disability.

What this means for you

Firstly, this case serves as a clear illustration of what not to say to your employees.

When an employee discloses they’re suffering from depression, employers should never make a joke of it or play it down.

Even if comments are not meant in a derogatory manner they can easily be claimed to be discriminatory.

Secondly, it highlights how important it is to take reasonable steps to determine whether or not an employee suffering from a medical condition had a disability or not.

In this case, the Tribunal found the employer had sufficient constructive knowledge of the disability, even though they didn’t know the details.

Need advice? Get in touch today

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