Let's take a "paws" for thought 

July, 2022 - Shoosmiths LLP

Chloe, the assistance cat, has hit the headlines of several newspapers over the past few weeks, following her owner (Mr Fenn) bringing a claim under the Equality Act 2010 against Sainsbury’s supermarkets after they refused Chloe’s entry to the store.


Mr Fenn has autism; a consequence of his autism is that he experiences sensory overload in busy places such as the supermarket and he states that Chloe helps him to focus. However, because of hygiene concerns, Sainsbury’s refused Chloe’s entry to the store.


Mr Fenn is bringing a claim against Sainsbury’s under the Equality Act 2010 (the Act). Under the act individuals can bring claims for discrimination not only in the workplace but more widely when using businesses that provide services and goods such as shops and restaurants.


Whilst Sainsbury’s is not Mr Fenn’s employer, it is clear to see how an individual may make similar requests of an employer or potential employer to bring assistance animals into the workplace. Emma Morgan and Lauren Bholé explore how organisations should handle requests for assistance animals within the workplace.


Key considerations

Organisations are under a duty to not discriminate against their employees and workers. This obligation extends to job applicants too. Where individuals raise requests to bring assistance animals into the workplace, organisations should consider the following:


  1. Does the individual making the request have a disability or are they likely to have a disability within the meaning of the act?

    The test for disability under the act is a “physical” or “mental” impairment that has a “substantial” and “long term” negative effect on the individual’s ability to do normal daily activities.

    Whether an individual is deemed to be disabled for the purpose of the act is a legal question based on the individual’s specific experience of their condition. Whilst some conditions are always classed as a disability such as cancer, often the question of disability is fact specific and just because one individual may be deemed to be disabled under the act doesn’t mean that someone else with same condition would be.

    Where organisations are unsure, they should obtain up to date medical evidence, consider a referral to Occupational Health and seek legal advice.
  2. Where an individual is or likely to be disabled for the purpose of the act, organisations should consider if the request for an assistance animal could amount to a reasonable adjustment.

    When considering reasonableness, employment tribunals will consider whether the requested adjustment would improve any disadvantage, the cost of the adjustment and the disruption that the adjustment would have on the organisation’s activities. It is the latter that will be most relevant in the case of assistance pets.

    In organisations where health and safety is of paramount concern such as hospitals, the refusal may be more likely to be justified than in an office environment. However, the effect of any assistance animal on other employees will need to be considered and if another employee is highly allergic to animals, again a refusal may be justified.
  3. Organisations should also consider how it has treated other individuals with similar requests, as any difference in treatment will need to be justified.

    For example, Mr Fenn argued that Sainsbury’s allow into their stores assistance dogs such as guide dogs or hearing dogs and therefore by not allowing Chloe (an assistance cat) there was inconsistent treatment.

Unfortunately, there is no firm answer on whether organisations should allow assistance animals, it will ultimately turn on the facts of each situation. As such, it is important that when faced with these issues, organisations take a “paws” for thought and seek legal counsel if in doubt.


If you require assistance with considering reasonable adjustments in the workplace or want to discuss discrimination law more widely, please contact Emma Morgan – [email protected] or Lauren Bholé – [email protected].


 



Link to article

MEMBER COMMENTS

WSG Member: Please login to add your comment.

dots