Section 4A of the Disability Discrimination Act 1995 provides that where a provision, criterion or practice supplied by, or on behalf of an employer places a disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of an employer to take such steps as is reasonable, in all the circumstances of the case, to prevent the provision, criterion or practice or feature having that effect.  Where an employer fails to comply with this duty it will be found to have discriminated against the employee in question.

As highlighted by the House of Lords (now the Supreme Court) in the decision Archibald v Fife Council [2004] UKHL32 [2004 IRLR651 [2004] ICR594, the duty necessarily requires a disabled person to be treated more favourably in recognition of their particular needs.

Although Employers are generally aware of their obligation to make reasonable adjustments, it can often be more difficult to determine whether an employee’s request or a recommendation made by a health practitioner is “reasonable” for a particular business. In considering whether a proposed adjustment is “reasonable”, a Tribunal will have regard to all of the circumstances, and in particular the following matters:

1. The extent to which taking this step would prevent the effect in relation to which the duty is imposed;
2. The extent to which it is practical to take the steps;
3. The financial and other costs which would be incurred by an employer in taking this step and the extent to which taking it would disrupt any of its activities;
4. The extent of an employer’s financial and other resources;
5. The availability to an employer of financial or other assistance with respect to taking the step; and
6. The nature of the employer’s activities and the size of its undertaking.

Employer considerations are illustrated in a recent Tribunal judgment of Byrne v Aware Defeat Depression Limited (Case reference 108/20 IT.  This case concerned Ms Byrne who was employed by the Respondent as a Communications Officer from March 2013. 
The Claimant was diagnosed with ulcerative colitis on 15 October 2017 and returned to work for the Respondent in August 2018 following a period of maternity leave.

On 2 August 2018, the Claimant met with her employer and asked for a variation to her existing work pattern to allow her to better manage her condition.  It was the Claimant’s understanding following this meeting that it had been agreed with her employer that she would be permitted to work a 4 day working week with 1 day working at home on a permanent basis.  The Respondent however later confirmed, in or around 4 October 2018, that the Claimant’s 4 day working week had been agreed on a trial basis for 6 months and that her application to work at home for 1 of these 4 days had been refused.

Following a discussion between the Claimant and the Respondent’s chairperson, the Respondent wrote to the Claimant on 23 October 2018 advising that the Respondent would grant her 1 day working at home each week up to Christmas 2018.  This was later extended to March 2019.

Following the appointment of a new CEO to the Respondent, a review of job descriptions of all employees took place including the Claimant in May and June 2019.  As part of the discussions in relation to the Claimant’s job description, she requested that the variation to her working arrangements be made permanent.  This request was refused by the Respondent.  The Respondent, for the first time, cited difficulties in the operation of the variation of the Claimant’s working hours alleging the Claimant had not been contactable when working from home and that her day of absence  had caused difficulties in arranging meetings and conducting business.

In subsequent correspondence on 23 July 2019, the Respondent advised the Claimant to apply for a variation of her contract under its flexible working policy.  The Claimant commenced a period of absence from 2 August 2019 due to “stress at work”. An Occupational health report obtained by the Respondent stated that the Claimant would be fit for work immediately if she were supported in returning to work on the same conditions as previously agreed for her.

On 3 October 2019 the Respondent wrote to the Claimant to confirm that as a result of the occupational health report obtained they would like her to return on a phased basis with a view to her returning to full-time work by 21 October 2019.  The Claimant subsequently resigned from employment on 16 October 2019 and brought Tribunal proceedings for constructive unfair dismissal and disability discrimination to include failure to make reasonable adjustments.

Decision

The Tribunal found that the Claimant had been constructively dismissed and discriminated against on the grounds of disability.  In respect of the Claimant’s case for reasonable adjustments, the Tribunal concluded that the Claimant had in fact sought a permanent variation of contract in August 2018 and that this had been agreed. The Tribunal commented that the Claimant’s adjustments had been facilitated for close to one year and that no significant problems with the operation of her working hours and location had been evidenced by the Respondent.  The Tribunal was critical for the Respondent’s pre-determined approach to the Claimant’s request and further noted that the post had been subsequently performed on a part-time basis:

“An adjustment could clearly have been made; it had been in operation for almost a year and adjustments were put in place after the claimant’s resignation”

Comment

This case provides a useful illustration of an employer’s obligations in practice under the Disability Discrimination Act 1995.  Whilst the Respondent cited difficulties and operational issues as a rationale as to why it was not in a position to accommodate the Claimant’s adjustments, the Tribunal was critical of its inability to evidence any occasions where this had been previously raised with the Claimant or contemporaneous records of operational difficulties which arose during the period when the Claimant’s adjustments were in place. This proved pivotal in this case and emphasises the importance of documenting and evidencing genuine issues faced by an employer  in relation to the implementation of adjustments. In this case the Tribunal was satisfied that the adjustments proposed would remove the disadvantage caused to the Claimant by her condition and that the Respondent failed to show any reasonable basis as to why they could not be made.

You might also find this publication from Legal Island useful. It has been developed with employers in mind, to help bring guidance and resources for the making of adjustments for disabled applicants and employees into one user-friendly publication.  https://www.legal-island.com/articles/uk/resources/reasonable-adjustments/2020/nov/employer-guidance-making-reasonable-adjustments/