Disfigurement and the DDA

According to a recent article in The Times, a pilot with Virgin Atlantic who was left facially disfigured and unable to fly after a car crash is suing Virgin for constructive dismissal and disability discrimination after allegedly being invited to apply for another job in a beauty salon.  The claim is denied by Virgin Atlantic.  It is unclear from the initial press reports whether the suggestion is that the pilot was offered an alternative position as a result of injuries sustained (particularly back problems) following the car crash which left him unable to fly, or whether it was in any way connected to the facial disfigurement which he suffered as a result of the car crash.  We will need to wait for the case to be reported fully before this will become clear. 

However, what would the position be if an employee is dismissed or removed from their current position following an injury which leaves them disfigured, or if they are disfigured at the time when they apply for a job?  This is obviously an extremely sensitive area, which should be handled with care by employers – not least because any alleged discrimination against a person who has been disfigured could make a headline-grabbing press story.

The answer lies in the detail of the Disability Discrimination Act 1995 (“DDA”).  Readers will recall that under the DDA a person will be “disabled” if he has 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”.  Special provision is made under the DDA both for the consequences of disfigurement and for different types of disfigurement.  Where an impairment consists of a severe disfigurement (which could be the case in the example of a severe car crash), it is deemed to have a substantial adverse effect on the person’s ability to carry out day to day activities, without the person having to prove anything further.  This is because the disfigurement may have no “physical” effect on the person in terms of their ability to work, but they may still be discriminated against.  Provided that the disfigurement is severe, such an employee would be covered by the DDA.  Therefore, for example, a large scar on a person’s back would be unlikely to be considered a severe disfigurement for these purposes.  A person with a severe facial disfigurement would however automatically qualify as having a disability under the DDA. 

Expressly excluded from the DDA are any disfigurements which result from tattoos and body-piercing for non-medical purposes (other than any disfigurements which may result from the removal of those tattoos or body-piercings).

Any less favourable treatment which is disability-specific, or which arises out of a prejudice about a disability or about a particular type of disability is likely to amount to direct discrimination under the DDA.  Therefore, for example, if a job applicant for a Bank is turned down for employment because he has a severe facial disfigurement and the employer considers that other employees would find it uncomfortable to work with that person, this is likely to be direct discrimination which arises as a result of the disabled person’s disability.  This would not therefore be capable of being justified by the employer (unlike the situation where an employer discriminated for a disability related reason – which is capable of justification). 

Note too that it is possible that a person who is subjected to bullying or harassment as a result of a disfigurement could potentially have a claim against his employer, even if he does not qualify under the DDA.  This is because he may nevertheless have a claim under the Protection from Harassment Act 1997.

It remains to be seen whether the Virgin Atlantic pilot will succeed in his claims against his former employer, but employers would be well advised to tread carefully when considering issues regarding recruitment or maintaining the employment of employees who have suffered severe disfigurements, since they will automatically qualify as having a “disability” under the DDA.  Any decision about recruitment, promotion, retention, redundancy etc. should therefore be made irrespective of the disfigurement, and should focus on objective criteria such as skills and capability.