Case law: Employer may have to make reasonable adjustment for disabled employee even if there's only a possibility it will help
Employers should ensure they consider reasonable adjustments to alleviate disadvantages suffered by a disabled employee, even if there is only a possibility they will alleviate those disadvantages. They must also implement them in good time before next reviewing the employee's performance.
This update was published in Legal Alert - September 2016
Legal Alert is a monthly checklist from Atom Content Marketing highlighting new and pending laws, regulations, codes of practice and rulings that could have an impact on your business.
There is unlawful discrimination if an employer does not make 'reasonable adjustments' to alleviate disadvantages suffered by a disabled employee. For example, it may have to change how things are done, make physical changes at work or provide equipment or help to the employee. Whether an adjustment is 'reasonable' depends on the circumstances.
A data entry clerk's disability meant she struggled to enter crucial medical data sufficiently accurately or quickly. Her employer obtained a consultant's report which recommended certain technical aids and specialist training to help her. A further assessment stated that the training should be for 40 hours. However, she had to ask for the technical aids many times before receiving it, and eventually only had 20 hours' training.
The employer monitored her performance and dismissed her on grounds of her capability. She claimed unfair dismissal, arguing that the employer had failed to make the reasonable adjustments - they were too little too late. The technical aids should have been provided well before the employer started monitoring her performance, and she should have had the full 40 hours' training.
The employer argued that such adjustments would not have been completely effective, and it was not reasonable for it to have made them. This argument appeared to be supported by the Equality and Human Rights Commission equality code which says that the issue of whether a proposed adjustment will alleviate the disadvantage was an important factor in deciding if it would be reasonable for the employer to make it.
The Employment Appeal Tribunal (EAT) ruled that the adjustments would have given the employee the chance of allowing her to achieve acceptable performance in her work. It was enough that there was a possibility, even though not a certainty, that they might have allowed the employee to avoid the unfavourable treatment of a performance review and her subsequent dismissal.
The EAT found that if the chance of an adjustment working was very small, and making it would have been at significant cost to the employer (for example, a small business), it was more likely an adjustment was not reasonable. However, if an adjustment could be made fairly easily then it may be reasonable to try it - even if its potential effectiveness was more uncertain.
- Employers should ensure they consider reasonable adjustments to alleviate disadvantages suffered by a disabled employee, even with only a possibility they will alleviate those disadvantages, and implement them in good time before reviewing the employee's ongoing performance
Case ref: South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley
Disclaimer: This article from Atom Content Marketing is for general guidance only, for businesses in the United Kingdom governed by the laws of England. Atom Content Marketing, expert contributors and ICAEW (as distributor) disclaim all liability for any errors or omissions.