Musculoskeletal Disorders (‘MSDs’) include problems such as joint injuries, arthritis, back pain and various repetitive strain injuries. It has been reported that MSDs are the second most common cause of sickness absence in this country and are, therefore, a potentially huge problem for employers and employees alike. Alexa Dunkley, Employment Team, Eversheds and Philip Davies, Associate,
Eversheds give their legal views on the subject.

MSDs can give rise to potential legal risk for employers in a number of areas, including health and safety law, negligence claims in respect of physical injury, unfair dismissal in the event of termination of employment and discrimination under the Disability Discrimination Act 1995 (“DDA”).

Recent disability discrimination case law has significantly influenced the specific types of claims which employees with MSDs (and other disabilities) are likely to bring and the way in which Employment Tribunals will approach such claims.

Can an MSD be a disability under the DDA?
In order for an employee to be disabled within the meaning of the DDA, he/she must suffer from “a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities”.  An impairment will have a long-term effect if it has lasted for at least 12 months, is likely to last for 12 months or is likely to last for the rest of the person’s life.

Therefore, simply put, the answer is ‘yes’, but not always, and employers will need to consider the individual circumstances of each employee suffering from a MSD when assessing the risk of the individual being disabled.

Recent changes to the disability discrimination landscape
The types of claims which may be brought under the DDA include: (1) disability-related discrimination; and (2) a failure to comply with the duty to make reasonable adjustments.  Recent case law has significantly changed the way Tribunals approach such claims and, therefore, the risks faced by employers.

In order to establish disability-related discrimination, a disabled employee must show that, for a reason related to their disability, they have been treated less favourably by their employer than others to whom that reason does not apply, and the employer is unable to justify the treatment. Until recently, it was reasonably easy for an employee to establish less favourable treatment, and the real question then became whether such treatment could be justified by the employer. This was because the appropriate comparator was a person to whom the underlying disability-related reason did not apply. For example, if the reason for the employee’s dismissal was twelve months’ disability-related absence, the comparator was someone to whom that reason did not apply – ie someone who had not been absent for twelve months and would likely not, therefore, have been dismissed.

However, in London Borough of Lewisham v Malcolm [2008], the House of Lords decided that the above approach was incorrect. Taking the above example, the Lords held that the correct comparator is a real or hypothetical non-disabled person who has been off sick for twelve months for a non-disability related reason.  As a result, in many cases employees will not be able to show any difference in treatment (ie because the comparator would also have been dismissed) and a claim of disability-related discrimination will fail. There was some speculation after the decision in Malcolm that Tribunals might seek to ‘raise the bar’ in the context of the duty on employers to make reasonable adjustments to off-set the fact that, post-Malcolm, disability-related discrimination was regarded as being largely toothless.

The duty to make reasonable adjustments provides that, where:
“(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or physical feature, having that effect”.

In Fareham College Corporation v Walters [2009], the Employment Appeal Tribunal (EAT) departed from earlier case law which had held that an act of dismissal cannot in itself amount to a failure to make reasonable adjustments, and that dismissals should be dealt with under the disability-related provisions. According to the EAT, this is no longer the case. As regards the exercise of identifying a non-disabled comparator, the EAT also held that, in reasonable adjustment cases, it is not necessary to undertake the “individual, like-for-like comparison” which is necessary in disability-related claims, and only a general comparative exercise is necessary.

Therefore, while Malcolm may reduce the number of disability-related claims brought, Walters may lead to an increase in the level of reasonable adjustment cases.

What impact will the Equality Bill have on disability discrimination legislation?
The Government proposed to address some of the concerns raised by the decision in Malcolm in the Equality Bill 2008-2009. However, the Government has now agreed to reconsider the relevant provisions following concerns raised during the Commons Committee debates on the Bill. The final form Bill is expected to take effect in Autumn 2010.

Alexa Dunkley, Employment Team, Eversheds and Philip Davies, Associate, Eversheds

If you would like more information about these issues, why not visit The Back Show 2009?

It takes place on Friday, 2 October 2009 at Brompton Hall, Earls Court, London, from 09.00 to 12.00.
Entry is free of charge if you register in advance or £15 on the day. Register for your free place by clicking here.

‘Back Pain 300mg Sustained Release capsules.  Contains
Ibuprofen.  For back pain relief.  Always read the label.’