Employment Appeal Tribunal gets its teeth into reasonable adjustments
When are reasonable adjustments required to be made for an employee with a disability and what can they include? A new Judgment of the Employment…
When are reasonable adjustments required to be made for an employee with a disability and what can they include? A new Judgment of the Employment Appeal Tribunal has found that the duty to make an adjustment can apply to any provision criterion or practice you have which “bites harder” on the disabled employee than others (regardless of whether it applies equally to all employees). When finding this in Perratt v The City of Cardiff Council, the EAT has found that not being required to walk too far to get printing and allowing recording of meetings, were both potentially reasonable adjustments that could have been made for this employee.
Mrs Perratt had a number of disabilities (including Asperger’s syndrome) which affected her memory and meant she struggled to cope when her duties were expanded. She also had mobility issues. After a period of absence, various meetings and a grievance, she was dismissed on capability grounds as the decision-maker could not see her becoming fit to work again in her role in the foreseeable future. Her claims principally relied upon reasonable adjustments which she said should have been made for her as a person with disabilities. Amongst other things, she said the Council should have made adjustments by: allowing her to record meetings to help her with her memory difficulties; not requiring her to walk to a central printer to collect her printing; and redeploying her rather than dismissing her.
The Employment Tribunal who first heard the case held that she could not succeed in her reasonable adjustment claims because in their view a non-disabled person would have been treated the same. So, for example, another employee with memory difficulties would have been in a position no different to Mrs Perratt after attending un-recorded meetings. The Employment Appeal Tribunal Judgment says this view was all wrong. Relying upon Griffiths v Sec. of State for Work and Pensions (which we wrote about at the end of last year), they held that anything an employer requires which “bites harder” on a disabled employee means that the duty to make reasonable adjustments will arise.
What this meant was that because Mrs Perratt was less able to remember what was said in a meeting than most other employees, that was enough to mean that recording the meeting could be a reasonable adjustment (and the Tribunal in the case will now need to reconsider if it is reasonable). Similarly, in theory requiring her to walk to collect her printing placed Mrs Perratt at a substantial disadvantage because of her mobility issues and therefore ensuring a colleague collected her printing could be a reasonable adjustment (albeit this claim was entered too late in time in this case so it wasn’t allowed).
What does this mean for me?
The only question now when considering most potential disability-related adjustments, is whether the adjustment sought is reasonable for you to make. This case follows Griffiths in moving the argument from legal technicalities to practical considerations, and means blanket bans are hard to maintain. You need to consider on each occasion whether or not something is an adjustment you can reasonably make for this person in this role with this condition (remembering reasonable adjustments will almost always be preferable treatment of this employee over others).
This case does not mean that everyone with a memory issue must be allowed to record meetings, or that every employee with a mobility issue must have their own printer or person primed to assist them. It also doesn’t mean that all long-term absent employees unable to return to their job must always be redeployed. However it does mean that if you refuse any of these things to someone with a disability, you need to be able to say why it was not reasonable for you to do so. With arguments about reasonableness comes uncertainty. If you are uncertain, we are always happy to help and to try to identify the level of risk.
If this case raises any issues for your organisation or you have any concerns about reasonable adjustments, please speak to your usual contact in the Weightmans employment pensions and immigration team (or Phil Allen on email@example.com).