The claimant in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley was a data input clerk. Her main task was to transfer manual records onto an accessible computer record. Accuracy was essential because the computer record generated dates for immunisation and developmental checks. The claimant's dyspraxia made her slower and more error prone than her non-disabled colleagues. Her employers commissioned a report from consultants which recommended specialist training and the provision of technical aids. An Access to Work assessment confirmed the recommendation for 40 hours of specialist tuition. The claimant repeatedly asked for the training, but was told that there were no specialist trainers within the organisation.
Eventually the recommended technical aids were provided and she received 20 hours of specialist tuition. However, following continued monitoring of her performance, the employers decided to dismiss her on capability grounds.
The Employment Tribunal decided that the employers had failed to make two reasonable adjustments: first, providing technical aids in good time, and in any event well before the monitoring of the claimant’s performance began; and secondly, providing all the specialist tuition recommended. The employers did too little too late – there was a chance that had the adjustments been made the claimant would have avoided the unfavourable treatment of performance review and dismissal.
The EAT upheld the decision. Although the EHRC Code lists the question of whether the proposed adjustment will work (in the sense of alleviating the disadvantage) as an important factor in deciding if it would be reasonable for the employer to make it, it is not necessary for an employee to demonstrate that the reasonable adjustment would be completely effective to avoid the disadvantage; it is sufficient to show there is a chance that it would do so.
The EAT went on to explain that if a measure proposed by an employee stands a very small chance of avoiding the unfavourable treatment arising out of her disability, but it was beyond the financial capacity of her employers to provide it, a tribunal would be entitled to conclude that it was not a reasonable adjustment. In the case of a large organisation by contrast, where a proposed adjustment could be implemented without imposing an unreasonable administrative or financial burden on the employer, then the obligation to take it may arise even if the chance of avoiding unfavourable treatment was very far from a certainty.
The Tribunal had correctly rejected the claimant's case that it would be a reasonable adjustment to set a lower threshold for her than her non-disabled colleagues. The reasonable adjustment was to give her a fair opportunity to achieve that rate or something so close to it as to be acceptable.