However, despite this the Employment Appeal Tribunal (EAT) has recently issued a number of important decisions. Although these are about the "old" law many of these cases are still relevant as the law remains pretty much unchanged. One area where this is the case is on the question of "what is a reasonable adjustment for a disabled employee.?"
For many employers the issue of cost is fundamental to the question of reasonableness. Common sense suggests that this must be right and this is backed up by statutory guidance. In addition the EAT has also approved this approach. In the recent case of Cordell v Foreign and Commonwealth Office the Foreign Office (FCO) declined to post a deaf employee to Kazakhstan because of the problems, and in particular the cost (about £230,000 a year), of providing English lip-speaker support for her.
The Claimant alleged that this was a failure to make a reasonable adjustment and in support of her argument referred to the fact that the FCO would pay similar sums by way of an education allowance to staff with large numbers of school-age children. The EAT held that the issue of the education allowance raised different questions and it was not reasonable for the employer to incur the significant costs involved in providing a lip speaker. In this respect the fact that this cost would use up practically the whole budget for readjustments was also relevant, but not conclusive.
The EAT has also emphasised that reasonable adjustments are primarily intended to enable the employee to return to or remain in work. Accordingly adjustments which do not achieve this aim are not reasonable. So, a failure by an employer to process an application for ill health retirement is not a failure to make reasonable adjustments (Tameside Hospitals NHS Foundation Trust) nor is a failure to provide rehabilitative work or a career break (Salford NHS Primary Care Trust v Mrs A Smith).
In addition the EAT has stressed that for the duty to make reasonable adjustments to be triggered in the first place the employee must show that they have been placed at substantial disadvantage compared to people who are not disabled. This was important in the case of RBS v Ashton. Ashton suffered migraines, which caused her to be absent for about half of the working year. Under the relevant RBS policy if an employee's absence levels reached certain trigger points then disciplinary action could be taken. RBS delayed taking disciplinary action against Ashton despite the fact that her absence levels had reached and exceeded the prescribed trigger points. Eventually Ashton was issued with a formal disciplinary warning for poor attendance.
Part of Ashton's claim was that the taking of disciplinary action was a failure to make reasonable adjustments. Although the Manchester employment tribunal found in her favour the EAT had no hesitation in overturning this decision. The EAT stressed that the tribunal must first identify the disadvantage that has been suffered by the Claimant.
In this case not only had the actual disadvantage not been identified but the evidence was clear that, by flexing the trigger points for disciplinary action in practice, disabled employees had a considerable advantage over non disabled employees. A suggestion that there should have been an indefinite relaxation of the policy was not a reasonable adjustment.
While employees will consider that these decisions are disappointing, employers will no doubt regard them as evidence of a much needed and long awaited return to common sense. However the spotlight on reasonable adjustments that led to these cases may be moving on. At the time these cases were brought the House of Lords had ruled, in the case of London Borough of Lewisham v Malcolm, that the correct comparator in cases of disability related discrimination was someone in materially the same position as the claimant - in that case what would the treatment have been of a non disabled person who broke the terms of their housing lease? This is known as the Malcolm test.
The Malcolm test made it virtually impossible to succeed in disability related claims and made the claim of choice one of a failure to make reasonable adjustments. The Equality Act has reversed the Malcolm test so that in, for instance, an absence related case the comparator is not an employee absent for the same time for non disability related reason (as required by Malcolm) but is instead an employee who has not been absent at all.
The Equality Act also introduced the concept of unfavourable rather than less favourable treatment so the need for employees to rely on an argument over a failure to make reasonable adjustments has significantly decreased. As a result, while employers will welcome the decisions of the EAT in relation to reasonable adjustments, they may simply have jumped from the frying pan into the fire.
Vanessa Potter is an associate at Doyle Clayton, the employment law firm
