The EAT upheld a claim for reasonable adjustments even though the claimant had not suggested the adjustment to the employer at the time.
2017, Employment Appeal Tribunal (EAT). Full judgment: www.bailii.org/uk/cases/UKEAT/2017/0202_16_1901.html
Facts
The claimant had dyspraxia and dyslexia. She spoke to her then line manager about her disability, telling him how the lack of adjustments was causing her to have to work long hours to enable her to get her work done. She subsequently emailed to request a flexible working arrangement whereby she worked compressed hours, a 36-hour week over four, rather than five, days. In the email she said that at this stage she believed that the only adjustment required was to work a four-day week with longer hours each day. She was also promised assistive software after she moved to a new building.
She later claimed the employer should have made a reasonable adjustment of reducing her workload.
Held: the EAT upheld the tribunal decision that there was a failure to make reasonable adjustments.
Need not have suggested adjustment at the time
The employment tribunal decision was upheld by the EAT. The employment tribunal had held that: (1) The relevant provision, criterion or practice (PCP) of the employer was a requirement that the claimant carried out the same volume of work as her colleagues. (2) Not having a reduced workload involved the claimant in working extra hours as a result of the effects of her disability. (3) There was no suggestion by the employer that reducing the level of work to some extent would inevitably not be a reasonable adjustment, nor was it in dispute that the employer did not seek to reduce the volume of her work.
The EAT cited its previous decision in Project Management Institute v Latif, 2007, where it had said that a person can claim for a reasonable adjustment even if they did not suggest it at the time. The EAT said in Kuranchie:
It is clear that these steps [the flexible working arrangement and assistive software] did not remove the disadvantage to which the Claimant was put during the relevant period (see paragraph 75). Thus the critical question here, as in Project Management Institute v Latif… (Elias P (as he then was) presiding; see paragraph 23), was whether the adjustment identified by Employment Judge Zuke, reduced workload, was a reasonable adjustment. That it had not been suggested by the Claimant prior to the Employment Tribunal hearing in Latif did not prevent the Tribunal from considering it… On the facts the Employment Tribunal in Latif was entitled to conclude that the “new” adjustment would have been reasonable and a failure to take that step amounted to a breach of the section 20(3) duty. We take a similar approach in this case…
My comment
This decision is in line with other cases which have held that provided the “lack of knowledge” defence does not apply, the reasonable adjustment duty does not require the worker to have suggested the reasonable adjustment at the time: Reasonable adjustment rules: employment>Onus to comply is on the employer.
It is not clear from the EAT decision whether the employer knew or should have known that the previous adjustments were not enough to overcome her issues. It might be argued that technically the employer only needs to know of the substantial disadvantage produced by the employer’s normal way of working before modification by any adjustments (Finnigan v Northumbria Police). However the position is not clear and a disabled person would be wise to make sure the employer knows if he or she finds that previously agreed adjustments are not enough.
