In two recent cases, Martin v. Swansea UKEAT/0253/20/AT and Aleem v. E-Act Academy UKEAT/0099/20/RN, the Employment Appeal Tribunal (EAT) considered whether reasonable adjustments put in place by employers were sufficient to offset against the disadvantages suffered by disabled employees.
If a provision, criterion or practice (PCP) places a disabled employee at a substantial disadvantage compared with their non-disabled colleagues, this engages a duty on the employer to implement reasonable adjustments. Employers should therefore be mindful of the impact of their policies and procedures on disabled employees and be willing to be flexible and consider whether reasonable adjustments may be required.
In Martin v. Swansea, the employee was absent due to stress-related ill health and was ultimately dismissed under the employer’s absence management policy. The policy contained a number of discretions applicable to disabled employees, including the opportunity to be offered a suitable alternative role. The claimant brought a claim on the basis that the application of the policy, rather than simply its terms, was a PCP which could place a disabled employee at a substantial disadvantage compared with non-disabled colleagues, depending on its application.
The Employment Tribunal (ET) had dismissed the employee’s claim on the basis that, because the policy contained discretions that applied to disabled employees, it did not constitute a PCP placing her at a disadvantage.
The employee appealed and the EAT held that, notwithstanding the discretions within the policy, the application of it to the claimant put her at a substantial disadvantage; she was still more likely to have a higher absence rate and therefore be at a greater risk of dismissal (because the discretions might not be exercised in her favour) compared with her non-disabled colleagues. The caveats within the policy were not enough to negate the substantial disadvantage caused by the policy itself. However, the EAT considered that the reasonable adjustments implemented by the respondent, namely the redeployment of the claimant with protected pay and support in applying for alternative job roles, were sufficient to alleviate this disadvantage and, on that basis, dismissed the claimant’s disability discrimination claim.
A question may sometimes arise as to what is considered as a reasonable adjustment. This was considered in the case of Aleem v. E-Act Academy. The claimant was a teacher who was no longer able to teach due to a mental illness that amounted to a disability. She was subsequently placed into an alternative, lower-paid role. By way of a reasonable adjustment, the employer agreed to continue to pay the claimant her higher rate of pay, on a temporary basis for a period of three months, during the probationary period for her new role.
At the end of the probationary period, the claimant accepted the permanent position and her pay was reduced to reflect the lower salary of her new role. She subsequently brought a disability discrimination claim against her employer on the basis that it had failed to make reasonable adjustments – in particular, she argued that the employer had failed to protect the higher salary she had received in her teaching role and that this amounted to a failure to make reasonable adjustments. (She had also brought a grievance about the employer’s handling of her situation.)
The ET dismissed her claim on the basis that it was not reasonable to expect the employer to continue paying the old salary, once her probationary period had finished and the grievance process concluded. The EAT agreed and emphasised that the employer had made a reasonable adjustment by protecting the claimant’s higher pay during the initial three-month probationary period for the new role and that it was reasonable for the employer to reduce the claimant’s salary on accepting the permanent position of the lower-paid role.
This case serves as a reminder to both employers and employees alike that an adjustment that the employee requests may not always be considered reasonable. The assessment will very much be decided on a case-by-case basis and will be influenced by factors such as the size and resources of the employer. Notwithstanding this, employers should remain flexible and responsive and be willing to take steps to encourage as inclusive and diverse a workforce as possible.
