C brought claims that her employer had failed to make reasonable adjustments to its attendance management policy when she was given a formal written improvement warning following a 66 day absence from work. Her claim was dismissed by the ET. She appealed to the EAT which also dismissed her appeal. She appealed again to the Court of Appeal.
C was an administrative officer. She was diagnosed with post viral fatigue syndrome and fibromyalgia. R conceded that she was disabled. R’s attendance management policy envisaged the possibility of a disciplinary sanction after a specified period of absence from work but allowed for adjustments to be made to the threshold if a person was disabled. Following an absence from work for 66 days, 62 of which were attributable to her disability, she was given a formal written improvement warning under R’s attendance management policy.
C raised a grievance and said that her employer should make two adjustments under s.20 EA 2010. Firstly, that R should not count absences due to her disability against her under the attendance management policy. Secondly the attendance management policy should adjusted so that C could have longer periods of absence in the future without facing the risk of sanctions. She argued that her employer’s failure to make the adjustments constituted a breach of s.20, EA 2010.
The Court of Appeal considered four grounds of appeal.
(1) was the ET right to conclude that there was no disadvantage?
(2) Was the ET right to conclude that the proposed adjustments were not steps?
(3) If there was a duty and the proposed adjustment did constitute steps which might be taken did the ET fail to consider C’s case?
(4) Was the decision on whether the adjustments were reasonable wrong?
The Court of appeal dismissed the appeal on ground 4, because it held that the ET was entitled to find that the adjustments were not reasonable.
However, the CofA disagreed with the ET and EAT’s conclusions on whether C had been placed at a disadvantage. Both the ET and the EAT had considered (albeit rather fleetingly) the nature of the correct comparator in a reasonable adjustments case. They held that the correct comparator in C’s case was a person who had been absent for a similar period of time to C but for a reason that was not connected with disability. Since C was treated no worse than this comparator she was not placed at a disadvantage and no duty to make an adjustment therefore arose.
The CofA disagreed and held that the duty was engaged, citing both Archibald v Fife and Smith v Churchill Stairlifts. The EAT in Ashton had rightly observed that “it is critical to identify the relevant PCP concerned and the precise nature of the disadvantage which it creates by comparison with its effect on the non-disabled. The importance of this is that until the disadvantage is properly identified, it is not possible to determine what steps might eliminate it.” However, the EAT in Ashton had identified the wrong comparator. The CofA relied in particular on the judgment of Maurice Kay LJ in Churchills. Maurice Kay LJ had identified the comparator as “readily identifiable by reference to the disadvantage caused by the relevant arrangements”. The CofA adopted this comparator and expressly rejected the notion that the case of London Borough of Lewisham v Malcolm  UKHL 43 should apply to the duty to make adjustments. The CofA held that RBS v Ashton had been wrongly decided.
The CofA identified the correct PCP was “that the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions.” This PCP placed a disabled employee who was more likely to be absent from work on health grounds at a disadvantage.
With regard to the 2nd ground of appeal, R argued that in order to qualify as a step, the step had to enable the person to either return to work, or carrying on working, and that the purpose of the step must be to promote “access to and progress in” employment. The CofA rejected this approach and held that there was no reason to artificially narrow the concept of what constitutes a step within the meaning of s.20(3) EA 2010. However, the CofA stated that:
“whilst a disabled employee may suffer disadvantages not directly related to the ability to integrate him or her into employment. the steps required to avoid or alleviate such disadvantages are not likely to be steps which a reasonable employer can be expected to take. The O’Hanlon case referred to above, provides an example”
For a summary of the O’Hanlon case click here”
This case overturns a the line of authorities, that had developed since the case of RBS v Ashton, which followed a dubious approach to the reasonable adjustments duty (see the article I wrote for the NLJ ashton was decided – Comparing Comparators).
There a number of important lessons to be learnt from this case:
- the correct comparator is a person to whom the PCP is applied but who is not disadvantaged by it;
- an action will qualify as a step if it does something to alleviate the disadvantage;
- a step that does not help the disabled person concerned integrate into employment is not likely to be a step that it is reasonable for an employer to have to take.
Ashton was a badly reasoned case that was then followed by the EAT on number of occasions. It was contrary to a settled line of authority stretching back to Archibald v Fife – a decision of the House of Lords. The resulting confusion allowed the Respondent to argue (perhaps rather surprisingly) that the notorious decision of London Borough of Lewisham v Malcolm applied to the duty to make adjustments. When one considers the actual law in detail this argument appears far fetched and in fact, the CofA, having considered that law, rejected the argument “without hesitation”. Had C’s appeal failed the duty to make reasonable adjustments would have been rendered meaningless.
One important question that Griffiths raises but does not resolve, is whether an adjustment that is not directed at allowing the claimant to return to work will be an adjustment. On the one hand Griffiths states that it is sufficient to simply apply the statutory test, and on the other it appears to recognise the statutory purpose, set out in O’Hanlon, that adjustments are required to enable persons to participate in the world of work.
As an aside it is also interesting to note the comment made by Elias LJ in paragraph 3 of his judgment. He says obiter that “There is in fact no obligation on the employee to identify potentially reasonable adjustments but that was done here and they were the only potential adjustments considered by the Tribunal.” This is an interesting comment. The case of Tarbuck provides solid authority for the proposition that there is no duty to consider adjustments as does the case of Project Management Institute v Latiff. The Respondent in this case does not appear to have referred to these matters. Elias J’s comments sit uncomfortably with what are established propositions of disability discrimination law. However, since the PCP in this case did actually subject C to a disadvantage – she was placed “at risk” of disciplinary sanction, this remark can perhaps be considered as obiter.
A transcript of this case can be accessed via the following link: