3 Oct 2016

Adjustments needed before employment? And what about the new law?

Williams v. J. Walter Thompson Group Limited (“JWT”).

Where an employer knows of a prospective employee’s disability, the employer should not offer that employee the job and then consider reasonable adjustments; rather, reasonable adjustments should be considered before offering the job if at all possible. It is, therefore, no defence to say that there are inadequate funds to set up the adjustments which an employer knew were needed, before the engagement.

At the end, we consider the implications of the new disability laws.

This case concerned a recruit to JWT, a well known advertising agency with around 275 employees and a part of the WPP Group Plc which employs about 65,000 people worldwide.

Miss Williams, who is totally blind, was an experienced worker within the IT sector. Before she took the job, she asked to have a screen-reader, a braille display and a speech synthesiser, all of which “Access to Work”, a government agency providing assistance to disabled workers, recommended and could provide. Miss Williams also explained to JWT that she would require training in a particular software application used by JWT – namely Lotus Notes.

She began work at JWT. Over two years, apart from research work, completing a holiday data base and some video conferencing work, none of which was challenging for a person of Miss Williams’ intellect and industry, she was given nothing to do. She was not trained to use Lotus Notes, except on one day, 18 months after employment started. The equipment which was recommended was slow to arrive, or never arrived at all.

It became apparent that JWT was ill equipped to provide adequate support to a blind employee. Miss Williams ultimately resigned claiming that she was constructively unfairly dismissed and that she had been the subject of discrimination under the Disability Discrimination Act 1995 (“the DDA”). As Miss Williams made clear in her resignation e-mail, the whole exercise had become a fruitless and despairing one.

The Court of Appeal makes a broad-ranging decision

The Court of Appeal upheld the decision of the Employment Tribunal in Miss Williams’ favour. It agreed that she had suffered disability discrimination on two counts: first, the company had not made reasonable adjustments (and could not justify that it had not done so); second, the company had treated her unfavourably because of a reason related to her disability, by not providing the support she needed. In other words, compared with someone who did not have the need for disability aids, she had been disadvantaged, and the company had no justification for not giving that support.

The Law Lords said that the most exceptional feature of the case needed to be emphasised. That feature was that JWT agreed to employ Miss Williams to do a specific job (worldwide software developer) knowing that she was totally blind; that she did not know how to use Lotus Notes; and that she would need to learn and be trained how to use them in order to do the job she was employed to do at JWT. It also knew she needed special equipment. Having taken Miss Williams on in those circumstances, JWT then failed to properly investigate either before or after she started her employment, the cost and time that it would take to fully train an unsighted person for the job that she was employed to do. She was not supplied with the necessary equipment and training to do the work that she was employed to do. She was not given work of the kind she was employed to do or other suitable work instead.

What about the changes to the DDA?

With the introduction of the Disability Discrimination Act 1995 (Amendment) Regulations 2003, which came into force on 1 October 2004 changes have been made to the law that may have affected Miss Williams’ case:

1. An employer is now under a duty to make reasonable adjustments where a “provision, criterion or practice” (rather than an “arrangement”) applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage when compared with people who are not disabled. It seems that “provision, criterion or practice” is even wider than “arrangements” and could relate to informal workplace practices (such as habitually going to the pub after work, playing sport in a company league) as well as formal arrangements.

2. There can now be no justification for failing to make a reasonable adjustment. The key test for employers will be whether the adjustment is reasonable or not. If it is, employers must make it. Other cases emphasise that employers should not wait for the employee to suggest adjustments, but should proactively consider them. Employers are not expected to make unreasonable adjustments, for example if they are disproportionate to the resources available.

3. There is now another new type of discrimination: on the grounds of disability itself, in addition to the old form where the employer subjects an employee to less favourable treatment for a reason relating to the disabled person’s disability. For example, simply rejecting an application from an employee because she is blind, rather than because you do not think she can actually do the job because she is blind, would be direct discrimination. This new form of disability cannot be justified, at all. Although the government suggests this new form of discrimination will only occur in very limited circumstances, we suspect many applicant employees, bringing claims in the Tribunal will argue that employers are guilty of one or other of the forms of discrimination, in the alternative. This will widen their chance of success.

Miss Williams won her case – but she could have done so more easily, possibly, under the new laws. And she would probably not have had to go as far as the Court of Appeal for her victory.

The government has emphasised that the change in the law ought not to deter employers from recruiting disabled employees but should ensure that focus is placed on working with employees in providing a dignified working environment for all regardless of disability. This case, although based on the old law, is a timely reminder of that principle.

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