Transcript Slide 1

Disability under the Equality
Act - Two Years On
The Duty to Make Reasonable
Adjustments
25 October 2012
Sarah Stanzel
Tanfield Chambers, London
E-mail: [email protected]
www.tanfieldchambers.co.uk
Duty to make reasonable adjustments
• Equality Act (“EA”) 2010, section 20
• Section 21(2): Failure to comply with the
duty to make reasonable adjustments is
discrimination.
Indirect discrimination (1)
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Section 19:
(1) A person (A) discriminates against another (B) if A applies to B a
provision, criterion or practice which is discriminatory in relation to a relevant
protected characteristic of B's.
(2) For the purposes of subsection (1), a provision, criterion or practice is
discriminatory in relation to a relevant protected characteristic of B's if—
(a) A applies, or would apply, it to persons with whom B does not share the
characteristic,
(b) it puts, or would put, persons with whom B shares the characteristic at a
particular disadvantage when compared with persons with whom B does not
share it,
(c) it puts, or would put, B at that disadvantage, and
(d) A cannot show it to be a proportionate means of achieving a legitimate
aim.
Indirect discrimination (2)
• Indirect disability discrimination can be
claimed in reasonable adjustment cases.
• Advisable in cases where the employer says
that he has complied with the duty / that
there was no adjustment that could
reasonably be made.
Lack of knowledge of disability (1)
• EA 2010, Schedule 8 para 20:
• (1) A is not subject to a duty to make reasonable
adjustments if A does not know, and could not reasonably
be expected to know—
• (a) in the case of an applicant or potential applicant, that
an interested disabled person is or may be an applicant for
the work in question;
• (b) in any other case referred to in this Part of this
Schedule, that an interested disabled person has a
disability and is likely to be placed at the disadvantage
referred to in the first, second or third requirement.
Lack of knowledge of disability (2)
• Wilcox v Birmingham Cab Services Limited [2011]
UKEAT/0293/10/DM:
• The employer is under no duty to make reasonable adjustments unless
he knows (actually or constructively) both (1) that the employee is
disabled and (2) that the employee is disadvantaged in the way set out
at section 4A(1) [section 20(3)-(5) EA 2010]; element (2) will not come
into play if the employer does not know element (1) (para 37).
• Statute does not require that the employer should know (actually or
constructively) the precise diagnosis, but that he should know (actually
or constructively) that the employee is suffering from an impairment
whose adverse effects are both substantial and long-term (para 34).
Lack of knowledge of disability (3)
• EA 2010 Code of Practice, para 6.20:
• If a disabled person expects an employer to
make a reasonable adjustment, they will
need to provide the employer with sufficient
information to carry out that adjustment.
• Para 6.21:
• Information gained by OH adviser is
assumed to be shared with the employer.
First requirement (1)
• Section 20(3):
• Where a provision, criterion or practice puts a disabled
person at a substantial disadvantage in comparison with
persons who are not disabled, the employer must take
reasonable steps to avoid the disadvantage.
• Code of Practice, para 6.10:
• “Provision, criterion or practice” includes formal or
informal policies, rules, practices, arrangements or
qualifications including one-off decisions and actions.
First requirement (2)
• Roberts v North West Ambulance Service
[2012] UKEAT/0085/11/RN:
• Provision, criterion or practice need not be
“applied to” the disabled employee; it can be
applied to other employees (claimant had
social anxiety disorder and pcp was hotdesking) (paras 32-34).
Substantial disadvantage
Section 212(1):
“substantial” means more than minor or trivial
Code of Practice, para 6.15:
Whether such a disadvantage exists in a particular case is a
question of fact, and is assessed on an objective basis.
• Para 6.16:
• Under the duty to make adjustments there is no
requirement to identify a comparator or comparator group
whose circumstances are the same or nearly the same as
the disabled person’s.
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Second requirement
• Section 20(4):
• Where a physical feature puts a disabled person at
a substantial disadvantage in comparison with
persons who are not disabled, the employer must
take reasonable steps to avoid the disadvantage.
• Section 20(10) gives examples of physical features.
• Section 20(9) gives examples of reasonable
adjustments relating to physical features.
Third requirement
• Section 20(5):
• Where a disabled person would, but for the provision of an
auxiliary aid, be put at a substantial disadvantage in
comparison with persons who are not disabled, the
employer must take reasonable steps to provide the
auxiliary aid.
• Section 20(11):
• Auxiliary aid includes auxiliary service.
• Code of Practice, para 6.13:
• This can be a support worker.
“Reasonable” adjustment (1)
• Code of Practice, para 6.28:
• The following are some of the factors which might be taken into
account when deciding what is a reasonable step for an employer to
have to take:
• whether taking any particular steps would be effective in preventing
the substantial disadvantage;
• the practicability of the step;
• the financial and other costs of making the adjustment and the extent
of any disruption caused;
• the extent of the employer’s financial or other resources;
• the availability to the employer of financial or other assistance to help
make an adjustment (such as advice through Access to Work); and
• the type and size of the employer.
“Reasonable” adjustment (2)
• Leeds Teaching Hospital NHS Trust v Foster
[2011] UKEAT/0552/10/JOJ:
• Considered section 18B(1)(a) DDA (now
para 6.28 of Code of Practice): an
adjustment is reasonable if there is a
prospect that it will prevent the
disadvantage (para 17).
“Reasonable” adjustment (3)
• Tameside Hospital NHS Foundation Trust v
Mylott [2011] UKEAT/0352/09/DM:
• Failure to consider ill-health retirement
cannot be a failure to make a reasonable
adjustment; an adjustment must involve
steps that make it possible for the employee
to remain in employment (para 53).
“Reasonable” adjustment (4)
• Cordell v Foreign and Commonwealth Office [2011]
UKEAT/0016/11/SM:
• Considered section 18B(1) DDA (para 6.28) regarding the
reasonableness of the cost of an adjustment; no objective measure;
relevant considerations of suggestive or supportive value are:
• size of budget dedicated to reasonable adjustments;
• what employer spends in comparable situations;
• what other employers are prepared to spend;
• cost of recruiting and training a replacement;
• employer’s resources;
• how much the employee would benefit from the adjustment (paras 27
& 30).
“Reasonable” adjustment (5)
• Section 20(7):
• The employer must not require a disabled
employee to pay the costs of complying with
the duty to make reasonable adjustments.
“Reasonable” adjustment (6)
• Olenloa v North West London Hospitals NHS
Trust [2012] UKEAT/0599/11/ZT:
• The duty to make reasonable adjustments
does not cease when the employee goes on
sick leave, unless the tribunal finds that the
employee would not have remained or
returned to work even if reasonable
adjustments had been made (para 30).
“Reasonable” adjustment (7)
• For examples of reasonable adjustments,
see Code of Practice para 6.33 (formerly in
DDA section 18B(2)).
Post-termination
• Section 108(4):
• A duty to make reasonable adjustments applies to A in so
far as [post-termination] B continues to be placed at a
substantial disadvantage as mentioned in section 20.
• Hinsley v Chief Constable of West Mercia Constabulary
[2010] UKEAT/0200/10/DM:
• Considered section 16A DDA (now section 108): the
employee resigned, then was diagnosed with depression
and asked to be reinstated (because resigned while
affected by depression); her reinstatement would have
been a post-termination reasonable adjustment (para 22).
Time limit (1)
Section 123:
(Usual 3 month time limit)
(3)For the purposes of this section—
(b)failure to do something is to be treated as occurring
when the person in question decided on it.
• (4)In the absence of evidence to the contrary, a person (P)
is to be taken to decide on failure to do something—
• (a)when P does an act inconsistent with doing it, or
• (b)if P does no inconsistent act, on the expiry of the period
in which P might reasonably have been expected to do it.
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Time limit (2)
• Humphries v Chevler Packaging Ltd [2006]
UKEAT/0224/06/DM:
• Decided under Schedule 3 para 3(4)(a) of
DDA (now section 123(4)(a)); a letter from
the employer saying that the only job
available to the employee was the cleaning
job which she had refused was an
“inconsistent act” (para 24).
Time limit (3)
• Matuszowicz v Kingston upon Hull City Council [2009] EWCA Civ 22:
• Decided under Schedule 3 para 3(4)(b) of DDA (now section
123(4)(b)); where there is no inconsistent act, the time limit starts
running at a time when the employer might reasonably have been
expected to have made the adjustment; the parties may not be aware
that time has started running (paras 20 & 24).
• Sedley LJ remarked that employees need to consider issuing
proceedings sooner rather than later (para 37) and when deciding
whether to enlarge time, tribunals should be sympathetic to the
difficulty para 3(4)(b) may cause (para 38).
• On the facts of this case, there was a continuing omission from the date
when the need for alternative suitable work became clear, which
continued for one year until the claimant’s TUPE transfer (para 25).