Chapter 16Employing labourRetirement provision
Lastly, the Sex Discrimination Act 1986 deals with dis-
crimination in retirement age and provides that organ-
isations with a compulsory retirement age will have to
make sure it is the same for men and women. A woman
who is forced to retire earlier than her male colleagues
will be entitled to claim unfair dismissal.
None of the above rulings and provisions has at pre-
sent any effect on the state retirement pension under
which women retire at 60 and men at 65. The Pensions
Act 1995 contains provisions to give a common retiring
age of 65 for both men and women to be phased in from
2010 to 2020.
Disability discrimination
The Disability Discrimination Act 1995 applies. The
main twin aims of the Act are to render unlawful dis-
crimination when already in employment and when
applying for a job and to provide a right of access to ser-
vices, goods and facilities for the disabled. This section is
concerned only with the employment aspects.
Also applicable are the Disability Discrimination
Act 1995 (Amendment) Regulations 2003, which amend
the 1995 Act insofar as it concerns discrimination in
the employment field. Important aspects such as the
new definition of harassment are brought in via the
regulations.What is disability?
Section 1 defines a disabled person as a person who has
a physical or mental impairment which has a substan-
tial and long-term adverse effect on his or her ability
to carry out normal day-to-day activities. Schedule 1
expands on this and states among other things that
‘mental impairment’ includes an impairment resulting
from or consisting of a mental illness only if the illness is
well recognised clinically. It also states that impairments
which would have an effect on a person’s ability but for
medical treatment or some form of aid are included.
Section 3 allows the Secretary of State to issue Guidance
and there are various rule-making powers to carry the
definition further.
The Disability Discrimination Act 2005 removes the
need for mental illness to be clinically well recognised
and adds to the definition of disability an illness such as
cancer, HIV infection and multiple sclerosis as within
the definition from the point of diagnosis.
A variety of conditions can be brought under the
general definition of physical and mental impairment.
In O’Neillv Symm & Co Ltd(1998) the EAT accepted
that chronic fatigue syndrome (ME) fell within the defini-
tion. The EAT has also accepted that employees who
were suffering from depression were disabled persons
under the Act (see KapadiavLambeth London Borough
Council(2000)). It is clear from the above decisions
that employers should be especially cautious before they
dismiss employees on the grounds of ill-health since
the condition may be regarded as a ‘disability’ for the
purposes of the 1995 Act. Medical reports should be
obtained and the employer should consult with the
employee to see whether any adjustments can be made
in the work situation such as a transfer to a new post or
by providing additional training or making modifica-
tions in the workplace or equipment. It is the need
to take these steps that distinguishes dismissal for an
unsatisfactory sickness record (which may be fair) from
a disability dismissal leading to a claim for uncapped
damages. In this connection, the Court of Appeal has
rejected the idea that in a disability dismissal there can
be a comparison between the treatment of a disabled
person and a person suffering from long-term sickness
(see Clarkv TDG Ltd (t/a Novacold)(1999)).535comparators. The case reached the Employment Appeal
Tribunal and the tribunal laid down some guidelines on
the operation of s 63A as follows:
■First, B carried the burden of proving facts from which
a tribunal could conclude in the absence of an ade-
quate explanation that the employer had committed
an act of sex discrimination.
Did B do this? Yes, because she proved the dis-
parity between the relevant incomes. She also showed
that the system of pay reviews in the City of London
was not transparent and that seemingly there were
no proper annual reviews and appraisals. She also
proved that the employer had consistently avoided
providing information in the questionnaire process.
■Second, once the above stage is reached, the bur-
den shifts to the employer, as it did in this case. The
employer was unable to show a material difference
situation nor had the employer any objective reason
for allowing the disparity in pay, share options and
bonuses. B’s appeal was allowed.