Employers are under a duty to make reasonable adjustments where they apply a provision, criterion or practice (PCP) which places a disabled person at a substantial disadvantage in comparison with persons who are not disabled. The case of Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley illustrates the importance of applying the proper legal principles in reasonable adjustment cases, and highlights the fact that employers are not under a general duty to assist disabled employees.
Mrs Bagley suffered an accident at work which left her disabled. Following periods of sick leave, and attempts to return to work, she was eventually dismissed for incapacity. The employment tribunal was highly critical of the way she was treated by the Trust, holding that it had failed to make a number of reasonable adjustments including failing to pay her various allowances and benefits, failing to deal efficiently and helpfully with her claims for those benefits, and failing to allow certain changes to her hours and duties.
However, the EAT overturned the tribunal’s decision. It found that the tribunal had failed to follow the proper analysis required in a reasonable adjustment case: firstly, to identify the relevant PCP, and then to identify whether the claimant is placed at a substantial disadvantage due to application of the PCP, in comparison with persons who are not disabled. If a non-disabled person would be affected by the PCP in the same way as a disabled person then there is no comparative substantial disadvantage to the disabled person and no duty to make reasonable adjustments arises.
The EAT held that none of the PCPs identified by the tribunal were capable of being PCPs, and there had been no proper comparison between the claimant and someone who was not disabled. For example, non-disabled people would be equally affected by similar inefficiencies in the handling of their affairs by the HR department. There was in any event no substantial disadvantage caused to Mrs Bagley. The EAT considered that the tribunal had fallen into the trap of listing things it did not like about the way the Trust had dealt with the claimant and labelling them as failures to comply with the duty to make reasonable adjustments. It concluded that the tribunal ‘must have allowed sentiment to cloud its judgement’ and commented that the duty to make reasonable adjustments is not a general duty to assist disabled employees.