The Daily Mail today reported on a case where a colleague was not invited to the Christmas Party when she was absent from work on sick leave; she brought proceedings against the company for disability discrimination covering a number of different complaints, one of which was that not being invited to the party amounted to disability discrimination.

These sorts of cases always hit the headlines, but this case is a good reminder that, when it comes to disability discrimination, each case will very much turn on its specific facts and employer's who rely on headlines alone will run the risk of claims. 

In this instance, the failure to invite the colleague to the Christmas party arose from her disability (as admitted by the employer) and on the face of it, that can amount to disability discrimination contrary to section 15 of the Equality Act 2010. But there is a ‘defence’ to any such claim where the employer can show that the treatment is a 'proportionate means of achieving a legitimate aim'. In this instance the Tribunal accepted that the legitimate aim of the employer was: 

“seeking to avoid causing the claimant additional distress of inviting her to an event where it appeared that she did not wish to attend and would not be fit to do so.”

In support of that understanding, the employer relied on an occupational health report from which they understood that the Claimant was unfit to attend work and that was seeking to be exempt from team meetings and social gatherings. It was the occupational health report, not an assumption made by the employer, which led the Tribunal to accept that there was a “…factual basis for the respondent’s belief in the content of the OH report and there was nothing to contradict this” and that in the circumstances of this particular case, the defence was made out and the Claimant's treatment did not amount to disability discrimination. 

Employers must therefore be very clear as to why they are treating a disabled employee differently because of something arising from their disability (the ‘legitimate aim’ question') and in doing must examine if this different treatment is proportionate (the ‘proportionate’ defence question).