Unreasonable reasonable adjustments and disability discrimination

by Laurie Anstis on August 31, 2011

Section 39(5) of the Equality Act 2010 imposes on an employer a duty to make reasonable adjustments for a disabled employee.

Section 20(3) describes part of this duty to make reasonable adjustments as a requirement:

“where a provision, criterion or practice of [the employer’s]
puts a disabled person at a substantial disadvantage … in comparison with persons who are not disabled, to take such
steps as it is reasonable to have to take to avoid the disadvantage”

 

Section 20 goes on to specifically deal with requirements as regards adjustments to premises and providing auxiliary aids.

These “reasonable adjustments” have been a difficult legal area for many years. The Disability Discrimination Act 1995 (one of the predecessors to the Equality Act) gave examples of reasonable adjustments, including things like redeployment and changes in working hours, but use of the word “reasonably” has can lead to doubt about how far the duty actually extends in any individual case. A number of cases (in particular Archibald -v- Fife [2004] UKHL 32) have emphasised the potential width of the duty, but in Salford -v- Smith (UKEAT/0507/2010) the EAT have given a reminder of some of the limitations of the duty.

The EAT’s useful summary of the case sets out the bare facts of the case:

The Claimant was a physiotherapist employed by the Respondent in a managerial position.  At the relevant time she was on long term sick leave because she suffered from chronic fatigue syndrome.  She was signed off work by her GP and was unable to return to her post or perform any productive work.

 

As for adjustments:

The Employment Tribunal found that attempts should have been made to produce something for the Claimant to do by way of rehabilitation, not necessarily productive, to enable the Claimant to go to her doctor to say, ‘Doctor, this is what they suggest I do involving perhaps light duties two or three hours a day, two hours a week.  Will you please sign me off to go back to work?’ notwithstanding that her GP maintained that at the time she was unable to perform any work at all.

The Claimant maintained that an alternative reasonable adjustment was to permit her to take a career break.

 

The EAT overturned the employment tribunal’s decision, and there are two particular points that I think are notable in the EAT’s decision.

The first is an emphasis on the significance of finding at the first stage what the “provision, criterion or practice” is that puts the disabled person at a disadvantage. In this case, it was found by the tribunal to be “the expectation the Claimant would perform her full role within the contracted hours“.

Once this was found, it followed that there were no reasonable adjustments that could be made in this case. The medical evidence suggested that the claimant was not capable of performing any work at all, and there was nothing that could be done to prevent the claimant from suffering the identified disadvantage.

Second, the EAT took the opportunity to set out a broad statement of the principles that apply to reasonable adjustments, at paragraphs 47 – 49 of the judgment.

Reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer.

… Any proposed reasonable adjustment must be judged against the criteria that they must prevent the PCP from placing her at the substantial disadvantage.

Adjustments that do not have the effect of alleviating the disabled person’s substantial disadvantage as we have set it out above are not reasonable adjustments within the meaning of the Act.  Matters such as consultations and trials, exploratory investigations and the like do not qualify.

 

The final statement “matters such as consultations and trials, exploratory investigations and the like to do not qualify” is a very broad limitation on reasonable adjustments – although it must still be the case that employers who do not take those steps may later find it difficult justify any failure to make other reasonable adjustments that these investigations may have revealed. A failure to obtain, for instance, a medical report, may not of itself be a failure to make a reasonable adjustment, but the medical report should still be obtained as it may point to other reasonable adjustments that should be made.

Judgment is awaited from the EAT in the case of Cordell -v- FCO, which will give the EAT an opportunity to comment on the effect that cost might have in assessing whether or not an adjustment is reasonable.