Employer’s failure to make reasonable adjustments hitting the headlines again

There is statutory duty on employer’s to make reasonable adjustments for staff who have a disability under section 20 of the Equality Act 2010 (EPA). This duty arises where:

• a provision, criterion or practice applied by or on behalf of the employer;
• a physical feature of premises occupied by an employer; or
• the lack of an auxiliary aid,

Places a disabled person at a substantial disadvantage compared with people who are not disabled. An employer has to take such steps as it is reasonable to take in all the circumstances to avoid that disadvantage. This could be before, during and at the end of a person’s employment.

For the purposes of the EPA, a disability is defined as: a physical or mental impairment which has a substantial and long-term adverse effect on a person’s ability to carry out normal day-to-day activities. The EPA defines long-term in this context as having lasted, or being likely to last for at least 12 months or the rest of the person’s life. Substantial is defined as more than minor or trivial.

The Employment Appeal Tribunal (EAT) has had to consider this thorny issue again in a recent case.

Facts of recent case on disability reasonable adjustments

Mr Charles was employed by the council as a Noise Support Officer. The council carried out a redundancy exercise which resulted in Mr Charles employment being terminated with notice. He joined a redeployment pool within the council. During his notice period, Mr Charles was signed off work with “sleep paralysis agitans”, a condition which meant that he woke up at night, paralysed, and so felt unable to go back to sleep. This led to him suffering from depression. The council referred Mr Charles to an occupational health physician who confirmed that he was not fit to attend administrative meetings.

While off work, Mr Charles appealed the decision to dismiss him. The council’s HR adviser sent Mr Charles an email asking if he still wished to be considered for a Noise Support Officer role knowing he had been signed off for the notice period and if he would be well enough to attend an interview. Mr Charles asked if the role entailed shift work and unsocial hours. The HR adviser confirmed the role involved shift work but if Mr Charles was successful in an interview the council would consider reasonable adjustments. The council subsequently sought to contact Mr Charles by phone and email. Mrs Charles did not respond. The council terminated Mr Charles employment. In the dismissal letter, the council referred to: “the absence of receiving an expression of interest from you regarding vacancies” and “no indication as to whether you are able to attend interviews”.

Mr Charles appeal was rejected and he presented claim for unfair dismissal and disability discrimination. A employment tribunal (ET) concluded that Mr Charles dismissal was fair but that the council had failed to make reasonable adjustments knowing that he had a disability and should have dispensed with the need for him to attend an interview. As a result he was placed at a substantial disadvantage by being dismissed.

The ET noted some important factors

• Mr Charles’s representative suggested that interviews could have taken place at his home, or information could have been required from him in advance, or a less formal interview process could have taken place; and
• Mr Charles had been employed since May 2008 and managers could have been consulted for an assessment of his abilities for a post which was two grades below his current post.

The council appealed. The EAT dismissed the appeal concluding that the need to attend an interview was a “practice” and placed Mr Charles at a substantial disadvantage because he could not attend an interview and therefore, he could not demonstrate that he was qualified for any of the jobs for which he might have applied. In particular, he had been unsuccessful in his application for the post of Noise Support Officer, for which he had indicated a qualified expression of interest.

The EAT made the obvious point that the requirement to adjust attending an interview for the role of Noise Support Officer does not lead automatically to the conclusion that Mr Charles would have been appointed.

London Borough of Southwark v Charles UKEAT/0008/14

Important takeaways from this case

This case demonstrates that employers and those advising them should not simply apply existing procedures when dealing with employees on sick leave and especially those that have been dismissed by reason of redundancy. Had those advising the council in this case taken a “step back” rather than simply applying the practice of requiring all employees to attend an interview, the need for Mr Charles attendance at an interview would have been clear.

Whether as employer or employee, I can help if you are concerned about a disability at work issue, disability discrimination or on the difficult issue of reasonable adjustments at work for a disability. Get in touch with me to discuss your situation.