R (Carphone Warehouse) failed to pay C the correct pay and conducted a flawed disciplinary process. C complained that R’s mistakes were failures to make reasonable adjustments. The ET upheld his claim and R appealed.
C had a long history of psychiatric difficulties with borderline personality disorder. C began to struggle at work when he was put under pressure by his regional manager. In November 2009 C was suspended for breaching the company’s trade in policy — a procedure that governed customers trading in their old phones. The suspension affected his mental health badly and he started a period of sick leave. There were a number of problems with C’s pay, which arose from R’s mistakes and which had a serious effect on C’s mental health. C put in a grievance which was not resolved for over 3 months. The disciplinary hearing was not resolved until July. The disciplinary hearing was not resolved until August. C appealed against this but, after a further meeting in October, he handed in his notice.
The EAT allowed the appeal against the finding of discrimination. HHJ Shanks held that a lack of competence in relation to a particular transaction, in this case preparing C’s pay slip in July 2010, could not properly be characterised as a ”provision, criterion or practice applied” for the purposes of the duty to make reasonable adjustments.
Furthermore the obligation created by the duty to make adjustments is an obligation to take such steps as are reasonable. ”Taking care” when doing something could not be regarded as the taking of a step. Similarly, avoiding delay could not be characterised as taking a step either.
Although the appeal against the finding that R had failed to make a reasonable adjustments claim succeeded, the appeal against the constructive dismissal claim failed.
This is a very interesting case concerning the proper definition of a PCP for the purposes of the reasonable adjustments duty. HHJ Shank’s reasons for saying that an action taken because of incompetence cannot amount to a provision, criterion or practice applied by or on behalf of the employer is not clearly reasoned. Why should an action taken competently, but in pursuance of a policy qualify as a PCP but the same actions, taken in error but not in pursuance of a policy not qualify? This appears to import an element of motive into the ”application” of the PCP.
A similar criticism can be made of the decision that the avoidance of delay cannot be characterised as a step. The obvious question is — why not? If a person with a mental impairment is put a disadvantage (perhaps by suffering more anxiety than a non-disabled person) by an overly long disciplinary process why should it not be a reasonable adjustment to complete the procedure in as short a time as reasonably possible?
The full transcript can be found here: http://www.bailii.org/uk/cases/UKEAT/2013/0371_12_1202.html