All employers know – or, if they don’t, they need to – that disability is a protected characteristic under the Equality Act 2010 and, in the same way as protected characteristics such as age, sex, and race, workers with disabilities are protected from direct and indirect discrimination, harassment and victimisation.
However, the legislation to protect those with a disability from discrimination also takes two further forms:
Discrimination arising from disability
“Discrimination arising from disability” occurs where A treats B unfavourably because of something arising in consequence of B’s disability, and A cannot show that the treatment is a proportionate means of achieving a legitimate aim (section 15(1) of the Equality Act 2010).
The duty to make reasonable adjustments
Where A’s provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison to those who are not disabled, A must take such steps as it is reasonable to have to take to avoid the disadvantage (section 20(3) of the Equality Act 2010)
There is no discrimination if it can be shown that the employer did not know, or could not be reasonably be expected to know, of the individual’s disability. However, discrimination arising from a disability does not require a non-disabled comparator, whereas in order to show a failure to make reasonable adjustments, there must first be a comparator group who are not disadvantaged (or at least, substantially less so) by the PCP than the individual with the disability.
Even the best employer, who is aware of its obligations, can find some practical situations difficult. Several recent cases demonstrate these.
In Griffiths v Secretary of State for Work and Pensions, the Court of Appeal considered what, if any, changes it would be reasonable to make to an absence management policy for an employee who had been unable to work for several months because of her disability. Like many employers, the Department of Work and Pensions had an absence management policy which was triggered after a set number of days’ absence during a rolling period (in this case, eight days’ absence – called the “Consideration Point” – in any 12 month period). What if, however, the employee’s absence was for a disability-related reason? The drafters of the policy had thought of that, and the policy expressly stated that the Consideration Point “may be increased as a reasonable adjustment if you are disabled” to “allow a reasonable amount of additional sickness absence for a disabled employee when such sickness is disability related”. If formal action is required, the policy gave managers discretion to give an oral warning, a written warning, a consideration of dismissal/demotion, or finally dismissal/demotion, but said a warning should not be given if the employee is disabled and the absence is directly related to the disability, and it would be reasonable to increase the employee’s Consideration Point.
Mrs Griffiths had been absent for 66 days, 62 of which were related to her newly diagnosed condition which Occupational Health had confirmed was likely to be considered a disability under the Equality Act 2010. When she returned to work, she was given a formal written warning under the policy. She brought a grievance but both her grievance and her appeal were not upheld, and she then went to an employment tribunal to claim failure to make reasonable adjustments. Both the tribunal and the EAT dismissed her case, and she appealed to the Court of Appeal.
It’s easy to see how “policy, criterion or practice” led to the policy itself being considered thePCP. Easy – but, says the Court of Appeal, wrong. The policy foresaw changes to accommodate those with disabilities, and therefore could never itself place the disabled person at a disadvantage. However, the correct PCP should have been the requirement to maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary action. Then it is clear this would substantially disadvantage those whose disability increases the chance that they will be absent from work.
The duty to make reasonable adjustments is not a duty to treat all employees in the same way. In O’Hanlon v Commissioners for HM Revenue & Customs, for example, it was not sufficient for an employer to say it should not have to adjust a sick pay scheme because all employees were treated equally. The Court of Appeal said that the positive obligation placed upon an employer to make reasonable adjustments requires only that a PCP puts a disabled person at a substantial disadvantage compared to a non-disabled person, not whether all employees were treated in the same way.
However, on the facts of the case, the tribunal was entitled to conclude that the PCP here did not put a disabled person at a substantial disadvantage compared to a non-disabled person.
- In relation to the warning, the tribunal had taken into account that the sickness absence did not relate to a one-off condition and that further lengthy periods of sickness absence were likely. The tribunal was entitled to conclude that it was not reasonable to expect an employer to disregard extended periods of absence.
- In relation to the extension of the “Consideration Point”, there was no obvious point by which it could be extended, and her future absences might well be long, in which case a short extension would be of no help to her (which might be a reasonable adjustment in cases where the periods of absence were likely to be shorter). The tribunal was entitled to conclude that extending the Consideration Point was not reasonable.
Employers should remember that although in this case the employee identified two steps she believed were reasonable and should be taken, the duty is on the employer and does not rely upon the employee having first put forward suggestions that the employer should consider.
References can be tricky. An employer is not obliged to give a reference, but should not refuse to give one for a discriminatory reason. Any reference given must be true, accurate and fair, and must not give a misleading impression. It is common that settlement agreements include an agreed reference and in Pnaiser v NHS England and Coventry City Council, that was precisely what had happened.
Mrs Pnaiser was disabled for the purposes of the Equality Act 2010 and during her employment by Coventry City Council she often worked from home and had significant levels of sickness absence. When she was made redundant, she signed a settlement agreement which included an agreed reference. She then received a job offer (subject to satisfactory references) from NHS England. NHS England wrote to the Council to take up a reference, enclosing its usual standard form reference questionnaire. Properly, Ms Tennant of the Council responded by email with a copy of the reference agreed with Mrs Pnaiser. So far, so good? Yes, but the email included an offer to discuss the reference further. Professor Rashid of the NHS recognised that the reference was not in the form requested, and made the mistake of telephoning Ms Tennant. Whilst there was a dispute about precisely what was said, it seems that Ms Tennant indicated that she would not recommend Mrs Pnaiser for the new role and the job offer was then withdrawn.
The EAT held that the question for the tribunal was to determine why Ms Tennant had given the negative reference, and whether there was evidence from which it could be inferred that Mrs Pnaiser’s absence history was part of the reason. On the facts of the case, the tribunal could infer that the unsuitability comments were made at least partly because of her record of sickness absence, and therefore the burden of proof should shift to the Respondents to show that this had played no part in the assessment that she was unsuitable for the role, and the withdrawal of the offer.
Employers are (with certain industry exceptions) not required to give a reference, but any reference that is given must not be misleading. The Council was correct to give the agreed reference, not to complete the form sent by NHS England, but should have stuck to that. Verbal references are always risky and even more so when they contradict the written (and in this case, contractually agreed) one.
As for NHS England, it would have been better if Professor Rashid had never made the call to Ms Tennant, since it was stuck between a rock and a hard place once Professor Rashid had heard what Ms Tennant had to say. If it did not employ the Claimant, they knew that there was a risk of a discrimination claim. If it did go on to employ the Claimant and she proved not to be able to perform her role satisfactory, then any capability process or dismissal would also be potentially discriminatory. If Professor Rashid had had any concerns, it would have been better to withdraw the offer having received only the written reference.
Competitive interview process
One of the leading cases on the duty to make reasonable adjustments concerned a competitive interview process. In 2004, the House of Lords held that the duty arises even if an employee becomes totally incapable of doing the job for which he or she is employed if he or she could do another job for that employer. In Archibald v Fife Council, a road sweeper whose condition meant that she could now do only sedentary work retrained and applied for over 100 posts at a higher grade. The council’s policy was that all employees applying for roles at a higher grade should be interviewed, but the House of Lords said that the duty of reasonable adjustments could apply to any aspect of a person’s job, including where he or she could no longer do the job. The employment tribunal was wrong to say that transferring Ms Archibald without requiring her to undertake a competitive interview could not be a reasonable adjustment.
Whilst Archibald v Fife Council concerns the situation where an employee is applying for new jobs because the old one is now unsuitable, what if the old job is disappearing? Although only an employment tribunal decision (and therefore not binding upon other tribunals),Waddingham v NHS Business Services Authority considered claims for both failure to make reasonable adjustments and discrimination arising from disability brought by an employee who was unsuccessful in a competitive interview process.
Mr Waddingham had worked for the NHS for over a quarter of a century but in early 2012, he was told that his role might disappear as a result of an internal reorganisation. In December 2012, he received the double blow of formal notice that he was at risk of redundancy and a diagnosis of throat cancer. Cancer is recognised as a disability under the Equality Act without the requirement to demonstrate any long-term substantial impairment to the individual.
In January 2013 he began radiotherapy. The nearest equivalent role to his own under the new (CSU) structure was vacant and he contacted both his current line manager and the CSUmanager about that position, and telling the CSU of his diagnosis and that his course of treatment would be eight weeks. The CSU’s HR manager told him that they would accept a shortened application form for the position, which he submitted. He had a fit note signing him off from work for the duration of the eight weeks’ treatment. The CSU invited him for interview, saying that it could be arranged around his treatment. Mr Waddingham suggested it was best to hold the interview sooner rather than later. He explained that his voice might be affected and that he was taking a number of drugs to control his pain. The interview took place on 18 February and he was told he could take a break at any time or stop and rearrange it if needed. He scored only 54% at the interview, falling considerably short of the 75% the CSU required, and was not appointed to the role. In March 2013 he was made redundant.
The employment tribunal upheld his claims for failure to make reasonable adjustments and discrimination arising from his disability. It was highly likely that his preparation for and performance at the interview had been adversely affected by the radiotherapy, its side effects and the pain-relief drugs he was taking. These included fatigue, effects on his concentration and difficulty eating. The interviewers could be expected to have considered it likely that his ability to cope with a competitive interview process would be affected.
The requirements to attend a competitive job interview and the requirement to achieve a score of at least 75% were PCPs putting him at a substantial disadvantage compared to non-disabled applicants.
But hold on, the employer might have said – we gave him the choice to rearrange or stop the interview, but he was happy to proceed, and put a positive spin on his condition. Doesn’t that count for anything? No, said the tribunal. That was immaterial, and did not absolve the NHSfrom its obligation to consider whether reasonable adjustments were necessary.
What does this mean for the employer? How far should the NHS have adjusted its procedures – should there have been any form of assessment at all? The tribunal said it was not necessary to lower the pass rate to allow him to succeed, and nor to remove the assessment at all and give him the role. Instead, it would have been a reasonable adjustment to look at the evidence, such as appraisals, from his previous roles within the NHS over the last 28 years.
Not appointing Mr Waddingham to the role because of his poor performance at the interview, which was at least in part because of his cancer and its treatment, was also discrimination arising from his disability. The tribunal did not accept the employer’s argument that any discrimination was justified because there was a legitimate aim to select the best candidate on the basis of an objective and competitive assessment, and the need to fill the vacant position without delay. The tribunal said that a more appropriate legitimate aim would be to find a candidate who could perform the role to the required standard; in any case, it would have been more proportionate not to require him to attend an interview or meet the pass mark, so the process could not be justified even if the aim was legitimate.
It may be that Mr Waddingham’s long service with the same employer contributed to the tribunal’s thinking. It was likely that the employer had plenty of evidence and internal referees who could contribute the necessary information to assess his skills and performance. It is not clear whether the same reasoning could be applied to an external candidate for the role who was suffering the same impairments as Mr Waddingham.
What steps are likely to be reasonable?
The cases are interesting examples of situations with which any business may have to grapple from time to time. What guidance can employers draw from them?
Both Waddingham and Griffiths are a reminder that the duty to make reasonable adjustments is a duty on the employer, not an obligation upon the individual to make suggestions which the employer can follow or not.
The EHRC Statutory Code of Practice says that the purpose of the duty is to make reasonable adjustments to promote “access to and progress in” employment, and the Court of Appeal in Griffiths said that any modification or qualification to a PCP is capable in principle of being a relevant step. However, it also added that steps were unlikely to be reasonable if where the disadvantage related to the worker’s personal circumstances rather than their employment: for example, in O’Hanlon, increasing the period in which the employee could claim sick pay was not a reasonable adjustment. This distinction is likely to be the subject of further litigation, but it is for the tribunal to decide what is reasonable in all the circumstances of each claim. For now though, employers may be reassured that changes to absence management policies should be considered, but may not always be reasonable, and it may not be necessary to extend sick pay schemes for those who are disabled.