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Disability Discrimination and Reasonable Adjustments

Employers are under a duty to make reasonable adjustments to premises or working practices to help disabled applicants and employees where there is a Provision, Criteria or Practice (PCP), physical feature, or lack of an auxiliary aid which puts a disabled person at a substantial disadvantage relating to a relevant matter in comparison to comparable people who are not disabled.

The case below was considered under the Disability Discrimination Act 1995. However, the definitions considered within this article would now be relevant under the new legislation, the Equality Act 2010.

The Facts – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley

 

The following events took place:

Mrs Bagley made a claim for failure to make reasonable adjustments and disability discrimination.

The Outcome

At first instance, the employment tribunal found that the Trust had failed to make reasonable adjustments in a number of areas such as failing to pay her TIA or PIB to enable a phased return to work, requiring her to agree to a permanent reduction in hours before considering her application for PIB and failing to support her in navigating “through a maze of policies”.

The Employment Appeal Tribunal (EAT) held that the tribunal had erred in its decision. It went on to say that the duty to make reasonable adjustments is not a general duty to “assist a disabled person” or help them overcome the effects of their disability. It is a duty where there is a PCP which places the disabled person at a substantial disadvantage compared to non-disabled people.

 

Conclusion

This case serves as a reminder that reasonable adjustments should not be seen as a general duty to support a disabled person through their difficulties or help them overcome them. The questions that need to be asked are:

Readers should not feel too comforted by this seemingly employer-friendly decision. Although the finding made by the EAT would seem to lower the burden for employers in relation to reasonable adjustments; it merely emphasises the hurdles that employers have to overcome to arrive at a decision in relation to reasonable adjustments. Employers should not shy away from confronting disability-related issues given that awards for successful claims in this regard can be unlimited.

If you would like any further advice on disability discrimination and reasonable adjustments, please contact Rachael Jessop using the contact information below.

 Contact Information

Rachael Jessop, Solicitor

rachael@floydgraham.co.uk

+ 44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.

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Updated: by FG Solicitors
Call us on:  0808 172 93 22

DISABILITY DISCRIMINATION AND REASONABLE ADJUSTMENTS

Employers are under a duty to make reasonable adjustments to premises or working practices to help disabled applicants and employees where there is a Provision, Criteria or Practice (PCP), physical feature, or lack of an auxiliary aid which puts a disabled person at a substantial disadvantage relating to a relevant matter in comparison to comparable people who are not disabled.

The case below was considered under the Disability Discrimination Act 1995. However, the definitions considered within this article would now be relevant under the new legislation, the Equality Act 2010.

The Facts – Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley

 

The following events took place:

  • Mrs Bagley commenced employment with the Trust during July 2008;
  • she was injured at work during November 2008;
  • she was off work sick from March 2009 and received full sick pay;
  • her entitlement to full sick pay ended during January 2009;
  • from January 2009 to March 2009, she received “Temporary Injury Allowance” (TIA) which topped up her sick pay;
  • she returned to work on a “phased” basis from March 2009;
  • it was the Trust’s policy that where an employee went back to work on a phased return, they would only be paid for the hours worked during a phased return; TIA would only be paid where the employee was off work completely;
  • Mrs Bagley was unable to work full-time but could not afford the reduction in her earnings if she only worked part-time;
  • Mrs Bagley went on to ask if she could apply for “Permanent Injury Benefit” (PIB) which would top up her salary to a maximum of 85%, and was payable if the injury causes termination of employment or a permanent reduction in earning ability. A series of an administrative blunders were made by the Trust in relation to this application;
  • she recommenced sick leave during May 2009; and
  • during February 2010, a decision was made by the Trust to terminate Mrs Bagley’s employment.

Mrs Bagley made a claim for failure to make reasonable adjustments and disability discrimination.

The Outcome

At first instance, the employment tribunal found that the Trust had failed to make reasonable adjustments in a number of areas such as failing to pay her TIA or PIB to enable a phased return to work, requiring her to agree to a permanent reduction in hours before considering her application for PIB and failing to support her in navigating “through a maze of policies”.

The Employment Appeal Tribunal (EAT) held that the tribunal had erred in its decision. It went on to say that the duty to make reasonable adjustments is not a general duty to “assist a disabled person” or help them overcome the effects of their disability. It is a duty where there is a PCP which places the disabled person at a substantial disadvantage compared to non-disabled people.

 

Conclusion

This case serves as a reminder that reasonable adjustments should not be seen as a general duty to support a disabled person through their difficulties or help them overcome them. The questions that need to be asked are:

  • Is there a PCP?
  • Does that PCP cause a disadvantage to the disabled employee compared to a non-disabled employee?
  • Are there steps that would alleviate that particular effect?

Readers should not feel too comforted by this seemingly employer-friendly decision. Although the finding made by the EAT would seem to lower the burden for employers in relation to reasonable adjustments; it merely emphasises the hurdles that employers have to overcome to arrive at a decision in relation to reasonable adjustments. Employers should not shy away from confronting disability-related issues given that awards for successful claims in this regard can be unlimited.

If you would like any further advice on disability discrimination and reasonable adjustments, please contact Rachael Jessop using the contact information below.

 Contact Information

Rachael Jessop, Solicitor

rachael@floydgraham.co.uk

+ 44 (0) 1604 871143

This update is for general guidance only and does not constitute definitive advice.