Focus on – reasonable adjustments
15th January, 2015
A number of recent Employment Appeal Tribunal (EAT) decisions have considered the concept of reasonable adjustments and how this idea should be applied in practice.
What are reasonable adjustments?
Employers are called upon to make reasonable adjustments to working practices and facilities in order to ensure that disabled employees are placed on an equal footing to non-disabled employees.
Precisely how far adjustments are reasonable is one of the key issues when dealing with cases in this area.
Reasonable adjustments and redundancy
The case of Dominique v Toll Global Forwarding Ltd considered reasonable adjustments in the context of a redundancy situation.
In the case, the EAT concluded that an employer will fail in their duty to make reasonable adjustments even if the redundancy dismissal would have occurred whether or not the adjustment was made.
In reaching its decision, the EAT considered that the dismissal was not the only disadvantage or detriment which a disabled employee could suffer due to a failure to make reasonable adjustments. For example, a low score could cause the disabled employee to suffer injury to feelings.
Mr Dominique (D) was employed by Toll Global Forwarding Ltd (TGF) in the charging department and was responsible for invoices. As a consequence of suffering a stroke, however, D became slower at completing his work.
When D’s manager was instructed to reduce the charging team by one person, D was informed that he was in the pool for selection and selection criteria had been established.
The selection criteria were heavily weighted in both productivity and accuracy and D therefore received the lowest score and was selected for redundancy.
D appealed against this decision and claimed that there had been a failure to make reasonable adjustments to the selection criteria on account of his disability. D’s appeal was rejected and his employment was terminated.
D therefore commenced proceedings at the Employment Tribunal. The ET found that there had not been direct discrimination but that D had been put at a disadvantage due to the selection criteria and the weighting of this.
The ET went on to find, however, that the selection criteria were proportionate and there had been no failure to make reasonable adjustments because, even if D’s scores had been adjusted, he would still have been dismissed. D appealed against this decision.
The EAT agreed that there had been no direct discrimination but found that there had been a failure to make reasonable adjustments and the fact that the outcome would have been the same did not defeat the claim.
What does this case mean?
This decision reiterates the importance of identifying whether reasonable adjustments are required to be made and applying those adjustments, even if they will not change the outcome.
Reasonable adjustments and long-term sickness
Two further recent cases on reasonable adjustments were based on a key issue for employers; disabled employees who have long sickness absences and thereby trigger attendance procedures.
An important issue which HR professionals are often faced with is whether reasonable adjustments are required to be made for disabled employees or whether a discretionary power to disregard some sickness absence is enough.
The first of these cases is Griffiths v Secretary of State for Work and Pensions. In this case Ms Griffiths (G), who suffered from post-viral fatigue syndrome and fibromyalgia, had taken substantial periods off sick. Her employer (SSWP) therefore acted in accordance with its attendance policy which triggered the issue of a written improvement warning.
G raised a grievance against this and requested two adjustments – that her absence period which related to her disability be disregarded and the warning therefore withdrawn; and that the number of days’ absence which would trigger the attendance policy should be increased in the future. G’s requests were refused and she therefore brought claims at the ET.
The ET, by majority, found that there was no requirement to make reasonable adjustments because G did not demonstrate a substantial disadvantage.
The EAT agreed and went further to find that the adjustments sought were not reasonable as the purpose of reasonable adjustments is to enable the disabled employee to carry out their work or return to work after disability-related illness. The adjustment sought was instead related to the treatment of her absence by her employer.
In the similar case of General Dynamics Information Technology Ltd v Carranza, a disabled employee (C) was given a final written warning due to his sickness absence record (he had been off 41.5 weeks in 3 years of employment).
Whilst the employer (GDIT) had previously been lenient with the sanctions it had imposed on C, taking into account his disability, they considered that it had reached the point where formal action was required.
C was subsequently off work for two further short periods of disability-related absence which did not prompt any further action by GDIT.
C was then off work for three months after suffering a shoulder injury. This triggered GDIT’s formal sickness procedure and C was therefore dismissed. C brought claims at the ET for disability discrimination and unfair dismissal.
Whilst the ET found in favour of C, the EAT overturned that decision. The EAT commented that an employer who has shown leniency in the past should not then be bound to show further leniency in disregarding all disability-related absences. In addition, GDIT were not required to reopen C’s final written warning.
Where do these cases leave employers?
These three cases demonstrate the recent approach of the EAT towards reasonable adjustments.
The cases highlight that whilst reasonable adjustments must be made to allow disabled employees to be on an equal footing in the workplace to that of non-disabled employees, this does not mean that an employer cannot take action when a procedure is triggered.
In particular, an attendance policy which is aimed at encouraging employees who have been absent due to sickness to return to work is likely to be justifiably applied to all employees alike.
However, an employer should always be ready to be more lenient towards disabled employees and must be able to demonstrate that, where possible, reasonable adjustments have been made to aid an employee’s return.
How can I find out more?
For more information on reasonable adjustments or any other aspect of employment law or HR matters, please get in touch.