The claimant worked for the respondent interviewing benefit claimants. His claim related to a provision, criterion or practice (‘PCP’) where he was required to achieve a particular rate of attendance to avoid being subject to the absence management procedure. He said that this put him at a disadvantage on the basis of his disability and that the respondent had failed to make reasonable adjustments as per the legislation. He also made complaints against other PCPs such as being flexible when he took his morning break and the requirement to undertake excessive workload. 

The Tribunal, at first instance, rejected the claimant’s claim. This was on the basis that the treatment of the claimant was not in relation to his disability but rather his difficult behaviour in the workplace. Indeed, the Tribunal found that a reasonable adjustment had been made in relation to the level of absenteeism allowed before the absence management procedure on the basis that they had increased the days from 8 to 11. On the other arguments, the Tribunal found that there was no substantial disadvantage to the claimant. 

The claimant appealed the decision to the EAT. In terms of absence management, the EAT held that the Tribunal must first identify the PCP in question.  To this end, the difficulty was that the PCP on this point had been described differently throughout the case (at the ET1, preliminary hearing and within the Tribunal’s judgment). The EAT found that PCPs were not being examined correctly but instead they were being looked at in reverse depending on the disadvantage alleged. Accordingly, the EAT stated that the PCP arises where the employer has an expectation of the employee and the same expectation arises in relation to other employees or there is a repetition of what is expected. Therefore, the EAT found that the PCP was the fact that there was a requirement to achieve a level of absence no greater than 8 days within a 12 month period. This could clearly have the effect of leading to substantial disadvantage on the basis of disability. Therefore, the issue was whether the respondent had made a reasonable adjustment. The Tribunal did not determine why a three day increase was reasonable. Additionally, the Tribunal did not consider the failure of the respondent to introduce a stress reduction plan for the claimant. Therefore, the appeal was allowed on this point. On the other points relating to the flexibility relating to breaks and additional work as it was put by the claimant those appeals were dismissed. 

Practical Lessons

This case provides a useful demonstration of how the Tribunal should explain the Provision, Criterion or Practice which is being used for a discrimination claim.  The main point is that the PCP should be looked at without the perceived disadvantage as that only has the effect of skewing the provision or leading to a circular argument relating to the disadvantage and the PCP. Therefore, it is better to look at it from the expectation on the claimant/other employees from the PCP.  In this case, this did examine potential disadvantage when it came to the absence policy and the difficulty for the respondent was that there was no reason put forward by the Tribunal as to why a three day increase would be such that it would alleviate the disadvantage faced by the claimant. 
https://assets.publishing.service.gov.uk/media/62cff476d3bf7f28601a1724/Mr_H_Ahmed_v_Department_for_Work_and_Pensions__2022__EAT_107.pdf