Disability discrimination: Reasonable adjustments prevented application of absence management policy being discriminatory

Published 10 septiembre 2021

The EAT has held that an employer who had redeployed a disabled employee with protected pay and supported her unsuccessful attempts to find alternative roles had not failed in its duty to make reasonable adjustments.

THE FACTS

Mrs Martin was employed by the City and County of Swansea.  Her role was made redundant and she was redeployed.  After sickness absence due to stress related ill health, she went through another 19 week redeployment process during which she worked in a supernumerary role.  After trailing another role she went off sick to avoid contact with a manager with whom she was in conflict. Upon her return, she was redeployed to a job at a lower grade, but received salary protection.  She applied for other more senior roles, and was shortlisted, but failed to attend the interview. She went off sick again and did not return from this absence.  Occupational Health identified that the Mrs Martin had a “chronic health condition” and had experienced work related stress as a result of “members of the team not getting on creating very negative working environment”.  After a series of meetings, a further attempt to redeploy her and the provision of external stress counselling Mrs Martin’s employment was terminated after a final absence review meeting.

Mrs Martin brought claims in the employment tribunal for unfair dismissal, failure to make reasonable adjustments, discrimination because of something arising in consequence of disability and whistleblowing detriment.  The tribunal dismissed all her claims. 

Mrs Martin appealed to the EAT in relation to the disability discrimination claims.  

The EAT held that the tribunal had made an error in law in deciding that the terms of the absence management policy and/or the fact the policy included discretions regarding alternative roles and pay (the relevant provision, criteria or practice (“PCP”) in this case) did not place her at a disadvantage compared with non-disabled persons. The EAT held the application of the policy did put Mrs Martin at a disadvantage because she was at a greater risk of absence than people who are not disabled, and therefore at a greater risk of dismissal.  

The EAT considered that the question for the tribunal, therefore, should have been whether Mrs Martin’s employer had taken such steps as were reasonable to avoid the disadvantage relating to the application of the policy.  In light of the tribunal’s findings of fact, the EAT agreed that the employer had made reasonable adjustments.

Relevant to the tribunal and EAT decisions were the facts that:

• The employer had extended the redeployment period from 12 weeks to 29 weeks. A further extension would have had no real prospect of resulting in successful redeployment.
• Mrs Martin had been placed in supernumerary positions during the redeployment process which gave her a good opportunity to seek redeployment.
• Mrs Martin had applied unsuccessfully for several roles. The employer had given reasons why she would not have been suitable for these roles and she had not disputed these reasons during the internal process.  Placing Mrs Martin in the roles which she had identified would not have been reasonable.
• There was no real prospect of her reverting to her substantive role, on medical grounds, due to her stress reaction.
• She had been provided with training to support her in the redeployment process. The other training that she had requested was too specific to be a reasonable step.
• A further extension of the redeployment process would have had no real prospect of a successful redeployment.
• She herself had said that she did not wish to delay her departure, and had suggested that there be an “exit strategy”.

The EAT dismissed the appeal.

WHAT DOES THIS MEAN FOR EMPLOYERS?

A PCP must be established before the duty to make reasonable adjustments arises. This is a fairly low threshold for an employee. It is therefore important that employers are mindful of the need to make reasonable adjustments when applying their absence policies in relation to employees who may be disabled. 

In some circumstances, it will be a reasonable adjustment to appoint a disabled person to a suitable vacancy without the employee making an application for the role or being subject to assessment.  Whether or not such an adjustment is reasonable will depend on the facts of the case, and employers should consider the possibility of doing so on a case by case basis.   

In this case the EAT was willing to consider all the steps the employer had taken to assist the employee due to her disability in determining that it had made reasonable adjustments.

Mrs A Martin v City and County of Swansea: EA-2020-000460-AT (Previously UKEAT/0253/20/AT)