The Court of Appeal confirmed the wide scope of the reasonable adjustment duty under s.20 Equality Act, holding that it can include adjustments to an absence management policy. However the court said that reasonable adjustments normally look to the future. Some claims may be better analysed under s.15 EqA, on the basis of whether or not a dismissal, sanction or other unfavourable treatment (for a disability-related reason) was proportionate in all the circumstances. There could be a s.15 claim even if adjustments to avoid the dismissal etc would not have been reasonable.
Court of Appeal, 2015. Full judgment: www.bailii.org/ew/cases/EWCA/Civ/2015/1265.html
The employer’s absence management policy provided for formal action to be considered after 8 working days sickness absence in any rolling 12 months (the “consideration point), but that might be increased by way of reasonable adjustment if the worker was disabled. There were four stages: oral improvement warning, written warning, consideration of dismissal/demotion, and dismissal/demotion.
The claimant had a disability which was likely to result in increased absences from work. She had already been given an oral warning for absence. She then had a 62-day absence, after which she was given a written warning. She argued this absence should be disregarded as exceptional absence, as the period when her illness was diagnosed and the treatment plan adopted, so that the written warning should be withdrawn. She also argued that given her disability, the consideration point in future should be extended from 8 to 20 days in her case.
The employment tribunal held that the duty to make reasonable adjustments (s.20 EqA) did not arise because the absence policy was applicable equally to all. The tribunal also held that if the duty did apply, the adjustments sought were not reasonable anyway. The Employment Appeal Tribunal (EAT) upheld that decision, adding that in any event the adjustments she sought were not “steps” within s.20 EqA and so were not possible adjustments, even if they were reasonable.
Held: her claim failed because the adjustments sought were not reasonable. However the Court of Appeal confirmed that the reasonable adjustment duty applied here and the adjustments she sought would indeed be “steps” within s.20.
Reasonable adjustment duty applies here
In the context of employment, the effect of s.20 EqA is that where any provision, criterion or practice (PCP) applied by or on behalf of an employer places a disabled person at a substantial disadvantage in comparison with non-disabled people, the employer is obliged to take such steps as it is reasonable to have to take to avoid the disadvantage.
Here the PCP as expressed by the Court of Appeal was: “the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”. Expressed in this way, the mere existence of a discretion to modify the policy for a disabled worker did not prevent the worker being at a disadvantage from the policy if the discretion was not exercised.
Did this PCP put her at a substantial disadvantage compared with a non-disabled person? Once the PCP was formulated in that way, yes clearly a disabled employee whose disability increases her likelihood of absence from work on ill health grounds is disadvantaged in more than a minor or trivial way. She will find it more difficult to comply with the requirement relating to absenteeism and so will be disadvantaged by it.
The Court of Appeal also rejected an argument based on the Malcolm case that the comparator must be similarly placed to the disabled claimant in all relevant respects save for the disability (eg similar absence level).
In summary, the reasonable adjustment duty arose once there was evidence that the arrangements placed the disabled person at a substantial disadvantage because of her disability. That was unarguably the position here.
The adjustments sought were “steps” within s.20
The employer argued that neither of the proposed adjustments constituted “steps” within s.20 EqA, and so could not be claimed as adjustments. Its argument turned on the purpose of the s.20 duty, which the employer said was to enable disabled employees to return to work or carry on working.
The Court of Appeal said there was no reason artificially to narrow the concept of what constitutes a “step” within s.20(3). Any modification of, or qualification to, the PCP which would or might remove the substantial disadvantage caused by the PCP – as the proposed adjustments did here – was in principle capable of amounting to a relevant step.
When is s.15 claim more appropriate than reasonable adjustments?
The Court of Appeal held it was open to the employment tribunal to find that these adjustments were not reasonable, so her claim failed.
However at paragraphs 79 to 81 (bailii.org) the Court of Appeal stressed that the reasonable adjustment duty (s.20 EqA) is only part of the protection for a disabled worker. It said reasonable adjustments are normally relevant when looking to the future. Whether or not it was reasonable to make adjustments, there is the separate question – at the time of any dismissal or other unfavourable treatment – whether in all the circumstances the unfavourable treatment is proportionate under s.15 EqA (discrimination arising from disability).
In a bit more detail, the Court of Appeal said in those paragraphs:
- Even if there is no failure to make reasonable adjustments (under s.20), that does not mean the employer can dismiss or impose a sanction in the same way as for a non-disabled employee. The employer is under the related duty under s.15 to make allowances for a disabled employee. A dismissal for disability-related absences, for example, could breach s.15 if the dismissal is not proportionate in all the circumstances.
- In the present case s.15 was particularly relevant to the claim for the 62-day period of absence, which in substance was a complaint that it was disproportionate to impose the disciplinary sanction. There was a certain artificiality in arguing this as a failure to make reasonable adjustments. The reasonable adjustment duty under s.20 is normally relevant when looking into the future; it was designed to help prevent treatment which might give rise to a s.15 claim. For a dismissal or disciplinary sanction, parties and tribunals should consider carefully whether reasonable adjustments are really in play, or whether the case is best analysed under s.15.
- The same artificiality did not apply to the second proposed adjustment (increasing the consideration period), which was designed to look into the future and to limit the risk of future disciplinary treatment being meted out for absence from work which would be disproportionate. However even if it were not reasonable to make that adjustment, under s.15 EqA the question would still arise, at the time of dismissal, whether the dismissal was a proportionate response to the pattern of absences in all the circumstances, including the important fact that they may be wholly or in part disability-related.
This decision is most important in resetting the reasonable adjustment duty to what most of us thought it was before. The employer’s argument would have very seriously weakened it. Reasonable adjustments remain a wide and important type of claim under the Equality Act.
However the decision is also very interesting for its discussion of where a s.15 claim (discrimination arising from disability) may be more appropriate than a claim for reasonable adjustments: above When is s.15 claim more appropriate than reasonable adjustments? Out of caution, claimants may still wish to claim for reasonable adjustments even in the type of case where the court questions using them. Even so, the case is a strong reminder that where appropriate a claim under s.15 EqA should at least be included, and may be stronger than a claim for reasonable adjustments. A s.15 claim may be successful even if adjustments to avoid the unfavourable treatment would not have been reasonable.
However I think there are also cases where a reasonable adjustment claim (s.20) adds substance, where s.15 too is being claimed, for example:
People are still likely to claim under s.20 that reasonable adjustments to the job were not made, as well as under s.15 in respect of a subsequent dismissal for reasons which might have been avoided had the reasonable adjustments been made.
In a recruitment process, where any identifiable reasonable adjustments were not made – for example not extending the time for an oral presentation or not allowing it to be in writing – it seems sensible to claim for that under s.20, as well as under s.15 in respect of being turned down for the job.