Disability is one of the listed ‘protected characteristics’ in the Equality Act 2010 (EqA) and if you suffer unfavourable treatment due to having a disability, you may be able to take a claim to the Employment Tribunal. The EqA recognises and protects against several types of discrimination, including; direct discrimination, indirect discrimination, harassment and victimisation, and employees are protected during every section of UK employment.
Uniquely, when making a disability discrimination claim, employees are also protected against any discrimination that occurs when employers do not make reasonable adjustments in the workplace. Under Chapter 2 of the EqA, all employers have a duty to make reasonable adjustments in the workplace to ensure disabled employees are not at a substantial disadvantage when compared to non-disabled employees. Failure to comply with this duty can result in a discrimination claim being made.
What are ‘reasonable’ adjustments?
An employer’s duty comprises three requirements;
“ (3)The first requirement is a requirement, where a provision, criterion or practice of A’s
puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(4)The second requirement is a requirement, where a physical feature puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage.
(5)The third requirement is a requirement, where a disabled person would, but for the provision of an auxiliary aid, be put at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to provide the auxiliary aid. “
Several factors will influence what adjustments are considered to be ‘reasonable’, such as; the cost and practicability of making an adjustment, the size of the organisation, and the resources available to the employer.
It is important to note that making reasonable adjustments applies to all areas of UK employment. Not only do employers have a duty to make adjustments during the period of employment, but they also have a duty during the recruitment and dismissal processes too. Many employees do not realise this is the case and they may be at a disadvantage when compared to non-disabled employees.
An example of reasonable adjustments not being made
In the case of Knightley v Chelsea & Westminster Hospital NHS Foundation Trust, the claimant was employed as a Lead Midwife for Mental Health in 2009. She played a key role in maintaining high standards of care for women experiencing mental health problems during pregnancy and the postnatal period.
From around 2007, the claimant suffered from stress, anxiety and reactive depression, and she was taking prescribed antidepressant medication. Problems with the claimant’s attendance started towards the end of 2012 and in 2014, a flexible working arrangement was implemented to help improve the claimant’s attendance record.
The claimant was then off work from August 2015 to September 2016 on the grounds of ill health. Upon returning to work, she was temporarily deployed to the antenatal clinic to facilitate the resumption of her substantive post. She was then off work on the grounds of ill health from March 2017 until the termination of her employment.
There was a long-term sickness absence hearing in January 2018, this was the second hearing of this kind that the claimant had been involved in. The claimant was reminded that this hearing could result in her dismissal. During the hearing, the claimant said she was unfit to work indefinitely, she no longer felt able to return to work and there were no adjustments which would enable her to do so, and she wished to apply for ill-health retirement.
The outcome of the hearing was that the claimant would be dismissed with 12 weeks’ notice on grounds of capability. A letter was sent to the claimant summarising the reasons for dismissal and notifying her of her right to appeal within ten working days of the letter. The claimant asked for a two-week extension of time to appeal, but this was refused. She submitted a summary appeal, but this was not considered by the respondent as it was out of time. This led to the claimant making a claim for unfair dismissal and discrimination arising out of disability.
An Employment Tribunal upheld part of her claim and found that the employer had failed to make a reasonable adjustment to its procedure when dismissing the employee because it did not allow her an extension of time to appeal. It provisionally awarded the claimant £3,000 for injury to feelings. However, it also found that the claimant would have been dismissed in any event. So, ultimately, the dismissal was procedurally and substantively fair and proportionate. Therefore, her claims for unfair dismissal and discrimination arising out of disability were dismissed.
The claimant appealed the Tribunal’s decision on 4 grounds. She argued that the Tribunal’s finding that she was unreasonably denied an opportunity to appeal against her dismissal should have led to her other claims succeeding. She said that the Tribunal had not sufficiently explained how her dismissal could be fair or proportionate given this finding.
The Employment Appeal Tribunal dismissed the appeal and found that this was not a case in which an appeal would have prevented the dismissal of the claimant. Given the strength of the reasons for dismissal, the lack of any realistic alternatives to dismissal and that the appeal would not have made any difference in the outcome, the lack of such an appeal did not render the dismissal disproportionate.
What can be learnt from this case?
Although the claimant in this particular case did not win her claim, it highlights the importance of always making reasonable adjustments. Making reasonable adjustments during the dismissal process is equally as important as making reasonable adjustments during employment. If some of the circumstances were different in the case above, such as if there was a chance the appeal against the dismissal would have been successful, the claimant might have won her unfair dismissal and discrimination claim.
This case also highlights how crucial it is that all employers carry out a fair procedure when dismissing an employee. To ensure fair practice is maintained, all employers must abide by two key areas of law and a dismissal should be made on fairgrounds in which there is clear evidence of employee wrongdoing or be made in regards to either an issue of redundancy or underperformance at work. Fairness is always a key component in an employee being properly dismissed and it is something that is taken into consideration in all unfair dismissal claims.
Speaking to an employment law expert about disability discrimination claims
If you have any questions about disability discrimination and the duty an employer has to make reasonable adjustments, do not hesitate to contact Damian McCarthy. Damian has more than two decades of experience helping clients who are being discriminated against in the workplace and he is regularly instructed on high-profile and complex discrimination cases. You can rely on Damian to provide you with the sound employment law advice you need.
Should you want to take a claim to the Employment Tribunal, Damian will work with you to develop a winning strategy that will get you results. Damian will be committed to winning your claim and he always lives up to his reputation of being a tough and effective employment law specialist. You can find out more about how Damian can help you on his website and feel free to get in touch today to arrange a free initial assessment with Damian.