In the case of Newcastle upon Tyne Hospitals NHS Foundation Trust v. Bagley (UKEAT/0417/11) the Employment Appeal Tribunal (EAT) has reminded tribunals that the duty to make reasonable adjustments is not a general duty to "assist a disabled person" and that they must focus on the wording of the statute.
The legal background
Section 4A(1) of the Disability Discrimination Act 1995 (DDA) imposed a duty on employers to make reasonable adjustments where a provision, criterion or practice (PCP) applied by an employer, places the disabled person at a substantial disadvantage in comparison with persons who are not disabled.
Although the DDA has been replaced by the Equality Act 2010, this contains similar provisions in relation to an employer’s duty to make reasonable adjustments. Therefore this case still provides useful guidance.
Newcastle upon Tyne Hospitals NHS Foundation Trust v. Bagley
Mrs Bagley injured her right arm at work on 18 November 2008 and remained off sick until 30 March 2009. She was classed as a disabled person for the purposes of the DDA.
During her sick leave she benefitted from Temporary Injury Allowance (TIA) under the National Health Service (Injury Benefit) Regulations 1995, which topped up her pay to 85% of her full salary. However, TIA ended when she returned to work part-time on a phased return and she was then only paid for the hours worked.
Mrs Bagley became concerned that she was unable to work full-time but could not afford to work part-time. She asked if she could claim Permanent Injury Benefit (PIB) which would top up her pay to 85% of her full salary. There were several errors made by the Trust’s HR department which delayed Mrs Bagley’s application for PIB.
In the meantime, Mrs Bagley resumed sick leave and received TIA. The Trust managed Mrs Bagley’s sickness absence and, following medical advice which was pessimistic about her ability to return to work, terminated her employment. Her TIA ceased but she started to receive PIB.
A tribunal upheld Mrs Bagley’s claim of disability discrimination, ruling that the Trust had failed to make a number of reasonable adjustments, including a failure to pay Mrs Bagley TIA or PIB on her part-time earnings to enable a phased return and a failure to ensure the application process for PIB was more efficient.
The Trust’s appeal to the EAT was successful. The EAT held that tribunals must focus on the wording of the statute and should avoid "a general discourse as to the way in which an employer has treated an employee generally". The duty to make reasonable adjustments is not a general duty to "assist a disabled person". In particular, the EAT found that tribunals must identify the relevant PCP. They must then identify whether the claimant is by the application of the PCP placed at a substantial disadvantage in comparison with persons who are not disabled. If a non-disabled person would be affected in the same way, there is no comparative disadvantage and no duty to make adjustments.
In relation to the tribunal’s specific findings the EAT held that:
- HR’s inefficiency "cannot sensibly be said to be a PCP at all.” Furthermore it considered that a non-disabled person would be equally affected by this.
- The Tribunal had incorrectly approached the issue of disadvantage as if it were an indirect discrimination claim focusing on group disadvantage.
- There was no disadvantage suffered by Mrs Bagley in any event as she was in receipt of TIA prior to receipt of PIB, both of which were paid at the same rate.
- Paying for the work done is not a disadvantage. The same would apply, for example, to someone returning to work part-time following maternity leave.
Impact on NHS Employers
The EAT judgment will no doubt be welcomed by NHS Employers. The EAT was critical of the decision of the tribunal and emphasised that an employer’s duty to make reasonable adjustments should not be seen as a general duty to assist or support disabled persons.