Employment law update - Disability discrimination

The duty to protect employees from unlawful harassment is placed upon employers by the anti-discrimination legislation. This includes protection against harassment where an employee is disabled. The definition of harassment is ‘unwanted language or behaviour which has the purpose or effect of violating a person’s dignity or creating an environment which is offensive, intimidating, offensive or humiliating.’

This was considered recently in the case of an insulin dependent diabetic employee who was asked to inject herself in the toilet. Miss Clark has to check her blood sugar levels throughout the day, injecting insulin when required. She uses a device that looks like a bulky fountain pen with a very small needle on the end. If she then needed to inject insulin, she would simply lift her clothes, inject into the stomach area and then rearrange her clothes. The process only took a few seconds and Miss Clarke carried out the process wherever she happened to be.

Miss Clark was appointed as a senior new business executive with Newsquest Media (Southern) Ltd and started training soon after that. The company was not aware of her diabetes at that stage. When the trainer, Mrs Duckworth, saw Miss Clarke doing something she didn’t realise that Miss Clark was testing her blood. Mrs Duckworth felt uncomfortable and reported the incident to another manager, Miss Gorham. The following day, Miss Gorham saw Miss Clark inject herself. A little later on she raised the matter with Miss Clark, saying that she did not think that it was suitable to inject herself in public and asking that Miss Clark find a more private place. Miss Gorham mentioned the toilet, which upset Miss Clark.

There was a further exchange between the two women the following day. Miss Gorham agreed that a toilet cubicle would not be appropriate, and said that she had meant the sink area, but Miss Clark was still upset by the suggestion. Soon after this Miss Clark wrote to Miss Gorham saying that the toilet was not a practical solution and asked where she could self-inject. Miss Gorham replied that she could self-test and inject at her desk “as long as everyone else was OK about it” and apologised for having suggested the toilet.

Miss Clark went off sick with stress and resigned, arguing that she had suffered disability discrimination. She said that the company had not made reasonable adjustments to accommodate her and it had subjected her to harassment on the grounds of her disability.

Agreeing with her, the tribunal found that the company had made several incorrect assumptions. For example, it considered that Miss Clark’s colleagues might be embarrassed or even harmed, if any of them suffered from needle phobia or if Miss Clark carelessly discarded a needle. The company had not investigated the matter or taken medical advice, so there was no basis for these beliefs.

The tribunal agreed that the company had not made reasonable adjustments. Miss Clark was required to agree to carrying out self-testing and injecting in private. This requirement put her at a disadvantage, was humiliating and disruptive to her work. The tribunal also agreed that she had suffered harassment in respect of her exchanges between Miss Gorham. In particular it said that the suggestion that Miss Clark inject in the toilet was inappropriate and offensive. The tribunal stated that Miss Clark had felt that she had no choice other than to resign. She was awarded £25,555 in compensation, including £8,000 for injury to feelings.

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