Disability and Adjustments – What is reasonable?

Well it has been some time since my last post.  I hope you have missed me.  I have been very busy since we last met, having set up Lionshead Law which started trading on 2 September.   Exciting times!  However, I am back and today I will be discussing whether or not an employer must automatically offer a disabled employee an alternative role following a company restructure, even though other affected staff are required to undergo a competitive interview process.    

The premise behind this argument is that an employer is under a duty to make reasonable adjustments where a provision, criterion or practice (PCP) puts a disabled employee at a disadvantage when compared to an employee who is not suffering from that disability.   In the case of a company reorganisation resulting in the changing of job roles, the PCP would be the requirement for all affected staff to competitively interview for one of the newly created roles.  Therefore, the first question to decide is whether the requirement to apply for a new post puts the disabled person at a disadvantage when compared to his colleagues. 

If the answer to that question is yes (and it invariably will be), then the next question is whether there is any reasonable adjustment that the employer can make to effectively level the playing field.   In the EAT case of Wade v Sheffield Hallam University it was held that the university was not in breach of its duty to make a reasonable adjustment when the Claimant was not automatically offered a new post when her original post was deleted following a reorganisation. 

In this case the Claimant’s role disappeared following a restructure at the university.  She applied for a new post and was unsuccessful because she did not fulfil two of the essential criteria which the post required.   Two years later she applied for the same post and was, again, rejected.  She argued that she should not have had to apply for the post competitively as her disability put her at a disadvantage when compared to individuals who did not suffer from her disability and that as such, the university should have made an adjustment to the process enabling her to be automatically selected for the post without having to compete against her non-disabled colleagues.

The question came down to reasonableness.  Whilst it may be a reasonable adjustment for a company to appoint a disabled individual to a new post without requiring him to interview for it, what ultimately decided this case in the university’s favour was that the employee concerned did not fulfil all of the essential criteria for the position.  It was deemed not reasonable to require the university to appoint someone to a post where only some of the essential criteria had been fulfilled.   However, had the employee fulfilled all the essential criteria then it is likely that it would have been a reasonable adjustment on the part of the university to simply appoint her to the post rather than require her to apply for it alongside her colleagues.

Companies  in similar situations with disabled employees therefore need to be careful when carrying out restructures/redundancies.  Where they are considering requiring affected staff to apply to be considered for new roles/alternative positions, if it is determined that an affected employee who is also disabled fulfils all of the essential criteria for an alternative role, then it may well be an act of unlawful discrimination if that person is not offered the post automatically but instead required to apply for it alongside his colleagues.

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Absence Management of Disabled Employees

Under the provisions of the Equality Act 2010 there is a duty on an employer to make reasonable adjustments where a provision, criterion or practice (PCP) applied by the employer, or a physical feature of the workplace, puts a disabled person at a substantial disadvantage in comparison with people who are not disabled.

In the case of Jennings v Barts and The London NHS Trust, Mr Jennings, a disabled employee, was dismissed on the grounds of poor attendance due to ill health.  Throughout his employment he had frequent and intermittent ill-health absences, some of which were as a result of his disability which was as a result of a mental rather than physical impairment.

The Trust had a short-term absence policy which it applied rigorously to all staff and which it applied to Mr Jennings.  As a result of the application of the policy, and following a series of meetings which were arranged but postponed due to Mr Jennings’ medical condition, or held in his absence when he failed to attend, Mr Jennings  received a first written warning.  The Trust then commenced the long-term absence procedure as Mr Jennings had gone off sick once the short-term policy had been implemented, citing that the implementation of the policy had made him even more stressed.

Although an Occupational Health assessment in January 2008  said that it would be possible that Mr Jennings would be ready for a phased return to work in March 2008, the Trust completed the long-term absence procedure and at a final stage meeting Mr Jennings’ manager formed the view that his continued absence was unfair to his colleagues, that the department was busy and that there was a real possibility that Mr Jennings might not in fact return to work as no firm date had been set.  Mr Jennings was dismissed.

Mr Jennings issued a tribunal claim for unfair dismissal and failure to make reasonable adjustments under the Disability Discrimination Act 1995 which was the relevant piece of legislation at the time.

The Tribunal found that, in this case, the PCP in question was the Trust’s short-term absence policy and specifically that the Trust did not permit unplanned intermittent absences without sanctions which would ultimately lead to dismissal.  Mr Jennings suggested that the Trust should have exempted him from this policy because of his disability.  The Tribunal felt that such exemption would not have been a reasonable adjustment.   The EAT agreed.

This is an important case for employers as it illustrates very clearly that the duty to make reasonable adjustments is simply that.  Whether an adjustment is reasonable or not will be very fact driven from case to case.  What may be a reasonable adjustment for a large employer of, say, 1000 employees or more may not be reasonable for an employer with only a handful of staff and a limited budget.  However, the findings in this case would seem to confirm that if an employer has a short-term sickness absence policy which is, in itself, fair and which it applies to all staff, then it is unlikely to be either unfair or discriminatory to dismiss someone at the end of the application of the policy even if the reason for the absences was a disability.   As a result, employers are advised to put such a policy in place and to manage all staff absences in line with the policy.  The important thing to note, however, is that if an employer ever deviates from such a policy for one or more members of staff who are NOT disabled then a disabled person may well be able to bring a claim of direct disability discrimination if it is, nevertheless, adhered to for him.  The key to the NHS’s defence was (a) that the policy was, in itself, reasonable and (b) it was applied universally and without exception.

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