Where reasonable adjustments are identified that would assist a disabled employee, these should be planned out and put in place without undue delay. ‘Aspirational’ adjustments alone are not enough to satisfy this duty.  

LAW

Section 6 of the Equality Act 2010 defines disability as a physical or mental impairment, that has a substantial or long term effect on an individuals ability to carry out normal day to day activities. Long term is deemed as anything that has lasted or is expected to last for 12 months or more, or will affect the individual for the rest of their life, and substantial is where the impact is more than trivial.

The duty to make reasonable adjustments for disabled individuals can be found in the Equality Act 2010 sections 20 and 21. The requirements are set out as follows:

• Where a provision, criterion or practice of A's 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.
• Where a physical feature 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.

FACTS

The claimant suffers from cerebral palsy, which affects their left side, causing weakness, mobility issues and difficulty lifting heavy objects. They were employed as an MOT tester.

Their health deteriorated after their first four months in employment which resulted in several periods of sick leave (all related to the disability) and the claimant needing to use a crutch to walk.

As a result, the respondent carried out a series of risk assessments, with a view to setting in place reasonable adjustments and mitigating the effects of the condition. However, these were implemented sporadically and in an improvised fashion. A number of measures were not implemented at all and were described by the ET as ‘aspirational’ only. These included actions such as booking the claimant’s last slot of the day to allow them to catch up with work, and delivering keys to save them from walking across the workplace

One adjustment that was recommended but not place in place for six months was the provision of an alternative chair, as the risk assessment had identified that the current one was not suitable. When the claimant chased the procurement of the chair, a number of months after the risk assessment took place, the respondents manager claimed that a suitable chair was not available, and that they would need to send the claimant options to choose from. This however did not happen, and eventually a chair was provided to the claimant that was widely available at the time of the original risk assessment, and was not adapted in any way for their particular needs.

At another point, the claimant was issued with an ‘improvement notice’. This was in relation to their sickness absence, and included the note by the respondent’s manager that read “[There needs to be] A concerted effort to ensure your attendance is 100% going forward. Doing this will lessen the impact on colleagues having to cover your absence meaning extra workload and stress”, and “if there is a fourth incident an absence meeting will be held to discuss further action.” This left the claimant feeling as though the sickness absence was being treated as a disciplinary matter.

Finally, the claimant was also disciplined for an error during an MOT test, resulting in a vehicle being passed when it should have failed. This led to the claimant being suspended from work and disciplined for gross misconduct, resulting in a final written warning.

These events, the claimant alleged, was a course of discriminatory conduct towards them by the Respondent which culminated in their constructive dismissal on disability grounds after slightly over two years service.

The claimant raised various, including discrimination arising from a disability and failure to make reasonable adjustments.

EMPLOYMENT TRIBUNAL (ET)

Having reviewed the facts, the ET established that the following PCP had been applied to the claimant:

(1) The requirement to attend work and to undertake work to a certain level in order to avoid being placed on the Respondent’s absence process and if absences reached a certain period, formal warnings would be recorded (which was found within the respondents disciplinary policy).

(2) The policy that Vehicle Technicians were required to undertake MOT tests and perform all duties pursuant to that role (as per the claimant’s job description).

In having these applied to them without adjustment, the ET found the claimant had suffered a substantial disadvantage in comparison to persons who are not disabled. The adjustments put in place were not suitable for the needs of the claimant, and were not given the time and effort that was required in order to properly implemented them. As a result, the ET upheld the claim for failing to make reasonable adjustments.

Next, the ET turned to the question of discrimination arising from disability. In order to fall within the prohibition of discrimination in the Equality Act, the unfavourable treatment must be because of something arising in consequence of the claimant’s disability. To this, the ET said, there are two elements:

1.       Did the respondent treat the claimant because of an identified “something”?

2.       Did that something arise in consequence of the claimant’s disability?

Should these elements indicate discrimination has taken place, it is still possible to justify it on the basis that the there was a legitimate aim. These elements were present, the ET went on, in relation to the record of improvement and the delaying (or failing) to comply with the risk assessments, and on that basis this claim succeeded. However, in relation to the disciplinary warning, which the claimant alleged was also discriminatory, this was rejected by the ET on the basis that the mistake that occurred was a serious and dangerous one, and as a result the final written warning was proportionate and legitimate.

REMEDY HEARING

The claimant was awarded compensation in the sum of £20,000, calculated on the basis this would fall within the middle of the ‘Vento’ bands due to the seriousness of the treatment of the claimant. Allowing interest at a rate of 8% pa for the intervening period of 958 days the total sum was £24,199.45.

The ET was also asked to make a recommendation in relation to the respondent’s EDI training. In an unusual step, it did, on the basis that the need for training at the respondent was considerable, perhaps more so at manager level that for new starters. In particular, the ET went on, it was concerned about apparent complacency amongst management in relation to the issues at the heart of this case, and the fact that this situation did not appear to have improved by the time of the hearing. As a result, a recommendation in relation to future training was made.

How can we help at Hunter EDI Solutions limited?

At Hunter EDI Solutions Limited we can help employers respond to the needs of their employees and prevent discrimination and inequalities within their workplace, ensure compliance with Equality Act 2010, avoid a costly Employment Tribunal and negative publicity, and avoid the toxic and disruptive culture that prejudice of any kind can create.

Some of the services we offer are as follows:

1. General HR and EDI Support
2. Undertaking an EDI risk audit
3. Equality related Policy and procedure including Disability Policy
4. Recruitment policy to include focus on prevention of bias and promote inclusivity
5. Performing Equality Impact Assessments
6. Unconscious bias training
7. Bystander Training
8. Reasonable Adjustment for Managers Training
9. Equality Act 2010 training
10. Helping an organisation improve their ‘bid for tender’ status by becoming more equality and diversity focussed
11. Building your stakeholder networks and engagement

If you would like to discuss any of the above further please don’t hesitate to get in touch with us on the number or email below.

Email: info@hunteredisolutions.co.uk

Dial: 07838184094

Specialists in Equality, Diversity and Inclusion

www.hunteredisolutions.co.uk.co.uk