The claimant a Northern Ireland civil servant, working in what was the DSD. Throughout the period beginning in November 2014, and ending in August 2015, the claimant’s taxi fares, to and from work, were reimbursed by the Department for Employment and Learning (“DELNI”) pursuant to its “Access to Work Scheme”.  The monthly cost of those fares is between £400 and £500.

The claimant made a claim under the Disability Discrimination Act (“the DDA”) in respect of an alleged failure of the respondent to comply with a duty to make a reasonable adjustment.  It was accepted that the claimant suffered a degenerative disc disease and a report by the NI Civil Service’s Occupational Health Service noted that a transfer closer to his home could accommodate an earlier return to work. In light of the report, the claimant requested a transfer to a location closer to his home, which was never granted. S.4A of the DDA Act imposes a duty upon an employer, in some circumstances, to make some adjustments.

The tribunal accepted that the claimant could potentially have been placed at a ‘substantial disadvantage’ in comparison with persons who are not disabled, but ultimately held that he had not been as the respondent was not the cause of the relevant pain/discomfort.

The tribunal identified a number of practical steps which the claimant could have taken to alleviate his pain, including agreeing to modify his working hours or even ‘stepping out of the taxi every 20 minutes or so’ to walk about on his way to work. The claimant’s own failure to take proactive steps at the very least contributed towards there being no ‘substantial disadvantage’.

Practical Lessons

The panel clearly felt here that, whilst the claimant was at a disadvantage from having to travel to work considering his condition, he didn’t take steps himself to help reduce his pain and discomfort. The tribunal noted that even a modest adjustment to his working hours would have reduced his travel time.

This case demonstrates that the question of whether an employee was at a ‘substantial disadvantage in comparison with appropriate comparators’ is not purely focused on the employer’s actions, but can include how reasonable the employee’s conduct was too. There is no imposition of a ‘burden of proof’ on the claimant but a tribunal are nonetheless entitled to look closely at their actions/omissions in the circumstances.

This case review was written by John Taggart BL. NI Tribunal decisions are available on the OITFET website:
ttp://www.employmenttribunalsni.co.uk/