Disability Discrimination. Employers need to get up to speed

Several years after the implementation of the Disability Discrimination Act 1995 and its successor The Equality Act 2010,  there is still a serious lack of understanding amongst even senior managers in large organisations, as to the extent of the duties owed by employers to
disabled members of the work force.

This was brought home to me recently when I represented a claimant at a local Employment Tribunal who was alleging a breach by her employer of the duty to make reasonable adjustments under section 20 of the Equality Act 2010.

The Background

The case concerned a call centre worker.  She suffered from an underactive thyroid and it was accepted on behalf of the employer that this amounted to a disabililty within the meaning of the Act. The employer's occupational health doctor confirmed that the claimant was
able to do full time hours, but unable to work beyond 6pm without experiencing severe fatigue.  The Claimant remained employed by the Respondent.

The Claimant made a request to work full-time hours but was told that she could be granted full-time hours only if she was prepared to work at least two shifts a week beyond 6pm.

 Tactics

There was a long history of grievances and difficulties between the Claimant and her line managers which took up a lot of the bundle.  There were a number of other allegations concerning harassment and victimisation which were evidentially weak.  However those who regularly appear for Claimants will know that tactically it is often better to pursue only the stronger parts of a case.  Call me old fashioned, but I've always felt that advocacy is a bit like a battle and tactics always come into it.  On this occasion the Claimant's case was fought on a narrow front.  This approach paid off. 

The case boiled down to whether it was reasonable for the employer to refuse the Claimant's request to have her shifts condensed so that she would not have to work beyond 6pm.  The employer adduced evidence that the demand for staff was greater in the
evening when most people are at home.  It had a surplus of staff during the day which is why it operates a policy that all full time staff had to work evening shifts.  This was the only fair and practicable method of working.

Section 20 of the Equality Act provides that the duty to make reasonable adjustments comprises three requirements.  The first requirement, under sub-section 20(3) "is a requirement where a provision criterion or practice (PCP) 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."

A few points on the law and the cases:

The starting point is whether the duty is activated and the leading authority of Environment Agency v Rowan 2008 IRLR 20  sets out the matters which have to be considered:-

(a)  Whether there is a PCP applied by the employer and whether it places the claimant at a substantial disadvantage;

(b)  the identity of a non-disabled comparator, in this case a hypothetical able bodied member of the workforce;

(c)  the nature and extent of the substantial disadvantage.

The concept of a PCP is broad enough to include formal and informal practices relating to hours worked BA v Starmer 2005 IRLR 862 EAT.

The "band of reasonable responses" test is so much part of the currency of Employment Tribunals, that in these cases it is worth spelling out to the Tribunal that the test is an objective one.  The Tribunal is required to form its own view as to what is reasonable Hardy
and Hansons v Lax 2005 IRLR 726 CA.  What is reasonable depends on all the circumstances of an individual case.  Once the Claimant puts forward a reasonable adjustment the Employer has the evidential burden of showing that it is unreasonable for it to take that measure.

There is no statutory definition of what is reasonable.  Clearly it requires a balancing excercise between the needs of the business, the practicability of the measure and the discriminatory effect of not making the adjustment.  Failure to make reasonable adjustments cannot be justified as is the case with indirect discrimination.  The test as to what is "reasonable" is not the same as the test applicable to the defence of justification found in s19 (2) (d) of the Eq A ie a proportionate means of achieving a legitimate aim (clearly there are similarities).

The purpose behind the legislation

I argued that the legislation had to be construed purposively and quoted from Barroness Hale in the House of Lords decison in Archibald v Fife Council 2004 UK HL 32  "the duty necessarily requires the disabled person to be treated more favourable in recognition of their special needs.  It is this not just a matter of introducing a level playing field for disabled and non- disabled alike, because that approach ignores the fact that disabled persons will sometimes need special assistance if they are not to be able to compete on equal terms
with those who are not disabled.

Code of Practice

A crucial feature of these cases is that Tribunals are required to consider The Code of Practice on Employment 2011.  Chapter 6 conatins guidance and specifies relevant factors which should be taken into account by an employer when considering what is reasonable.  They include:-

-  Whether taking the steps would be effective in removing the substantial disadvantage

-  The financial and other costs of making the adjustment

-  The extent of the employer's financial or other resources.

The later was an important consideration in this case. It became apparent during cross examination of senior management that no
attempt had been made to give any serious individual consideration to the Claimant's needs as a disabled person.  There seemed to be no awareness of the duty to make reasonable adjustments.  There had been no involvement or referral to HR simply a strict adherence to the general policy.

The outcome

The Tribunal found there had been a failure to discharge the duty to make reasonable adjustments. This amounted to prohibited conduct under the Act and the Tribunal made a declaration to this effect.  The request had been outstanding for about two years.  Having heard evidence from the Claimant as to her request the Tribunal found that this was not a minor breach and proceeded to make an award in respect of hurt feelings in the sum of £7,000.  An additional award on a modest scale was made for loss of earnings.  In addition, the Tribunal made a recommendation under s124(2) (c) requiring the employer to consider steps to find an opening for the claimant which would enable her to work full-time hours within the hours she was capable of working.  This leaves open the possibility of the Claimant bringing this matter back to the Tribunal for an uplift of the awrd if, without reasonable excuse, her employer has not complied with
the recommendation see s124(7) EqA.

GARETH THOMAS