Auntie looks at recent developments on reasonable adjustments

Dear Auntie,

I was recently talking to another HR colleague and he mentioned that there have been a number of recent cases on disability discrimination and, in particular, the duty to make reasonable adjustments.  It made me realise that I’m quite behind the game on this.  Could you please give me a brief update on the recent cases?         

Yours sincerely,

Bea Reasonable (HR Manager)

Dear Bea

There have been a number of cases recently on the subject of disability discrimination and the duty to make reasonable adjustments.  Although the cases below have been brought under the old legislation (Disability Discrimination Act 1995), the same principles apply under the Equality Act 2010.  The case law under the old law does, therefore, remain relevant.

Wilcox v Birmingham CAB Services Limited (EAT, 0293/10)

In this case, the Employment Appeal Tribunal (EAT) clarified the fact that the duty to make reasonable adjustments arises where an employer knows (actual or constructive knowledge) that an employee is:

1. disabled; and
2. likely to be placed at a substantial disadvantage because of that disability.

The claimant suffered from travel anxiety.  She did not investigate whether her anxiety was the result of a medical condition, or obtain a medical report and was obstructive of her employer’s attempts to obtain a report.  She brought a claim for disability discrimination by way of a failure to make reasonable adjustments.  A joint medical report was obtained as part of the Tribunal proceedings which established that she had been suffering from agoraphobia and that she was “disabled”. 

The Tribunal held that, due to the circumstances and lack of medical information available before the joint expert’s report, the employer did not have enough information to know (and could not reasonably have been expected to have known) that the claimant was disabled at the relevant time and, therefore, the duty to make reasonable adjustments did not arise.  The EAT agreed. 

This decision will give employers some comfort, particularly in cases where employees fail to provide information to their employer or delay their employer’s obtaining medical advice.  However, this case is fact specific and employers are advised to take reasonable steps to establish whether or not a particular employee’s condition constitutes a disability, thereby giving rise to the duty to make reasonable adjustments.

Lancaster v TBWA Manchester (EAT, 0460/10)

The claimant suffered from panic and social anxiety disorders which amounted to a disability.  He was selected for redundancy from a pool of three people, having obtained the lowest score against the selection criteria and brought claims against his employer, including for a failure to make reasonable adjustments.    

The claimant felt that three of the selection criteria used had placed him at a substantial disadvantage compared to the other two individuals because of his condition and argued that the employer should have done one of the following by way of a reasonable adjustment:

1.       scored the claimant by omitting to apply the three selection criteria complained about; or

2.       changed the entire selection criteria so that they focussed on objective issues, such as length of service and disciplinary record.

Both the Tribunal and the EAT held that neither of the above amounted to a reasonable adjustment because they would not have changed the outcome.  On the first point, the Tribunal found, based on the evidence, that the claimant would have scored the lowest even if the three criteria in question were not applied to him.  On the second point, the EAT held that purely objective criteria would not have been appropriate given the nature and seniority of the claimant’s role.

The message to take away from this case is that an adjustment is not a reasonable adjustment where it would not remove the disadvantage suffered by the employee. However, it should not be interpreted as meaning that employers do not have to consider amending redundancy selection criteria as a reasonable adjustment.  The Equality and Human Rights Commission’s statutory Code of Practice includes the example of amending such criteria as a possible reasonable adjustment.

Salford NHS Primary Care Trust v Smith (EAT, 0507/10)

The claimant suffered from chronic fatigue syndrome.  She brought a claim for disability discrimination, claiming that the reasonable adjustments her employer should have made were:

1. to offer her a career break; or
2. to make a proposal to the claimant (for her to discuss with her GP) that she be given work in “some capacity” (i.e. not productive work) to help her return to work. 

The Tribunal found for the claimant, but the EAT overturned that decision.  The EAT held that the primary concern of a reasonable adjustment should be enabling a disabled person to remain in or return to work. 

The EAT was surprised at the suggestion of a career break because such a move could have in fact disadvantaged the claimant.  This is due to the fact that a career break would have been unpaid (whereas the claimant was receiving sick pay whilst off sick), and could have had the effect of prejudicing the claimant’s chances of qualifying for ill health early retirement at a later stage.  A career break is not therefore a reasonable adjustment.

With regard to the proposal of giving the claimant “rehabilitative” (rather than “productive”) work, the EAT noted that this was a proposal and held that making a proposal is not in itself a reasonable adjustment because it would not have mitigated the claimant’s disadvantage.  The duty to make reasonable adjustments only covers “substantive” adjustments rather than “procedural” steps (such as consultation, trial periods, etc).

Conclusion

The duty to make reasonable adjustments is, of course, a complicated and constantly evolving area of law, but I hope the above will give you the update you need to catch up with your colleague.  It is worth bearing in mind, however, that although case law and the guidance within it are very important, each individual case invariably turns on its own facts and you should always take advice when faced with a situation you are unsure of.