We saw a number of cases in 2013 around what constitutes a reasonable adjustment. We also had a controversial EAT decision on what constitutes knowledge of a disability.
Wade v Sheffield Hallam University
An employee of Sheffield Hallam University ("Hallam") was dismissed after being found unsuitable for a new role. Mrs Wade ("Wade") suffered from an allergic condition that was covered by the Disability Discrimination Act 1995. Reasonable adjustments had been made for her to perform her duties, including allowing her to work from home. Wade was absent and eventually placed on gardening leave in December 2005 until her dismissal in January 2012. During that period, as in most public institutions, restructuring was taking place. The job previously carried out by Wade ceased to exist. Wade interviewed for a role in July 2006 and was told that she was unsuccessful as she did not meet two essential criteria, namely the ability to lead teams and the ability to work in a newly structured faculty. The same post became vacant in 2008. Again Wade interviewed (albeit in a competitive interview process) for the position, and during her interview her allergic condition flared up. Alternative arrangements were made to undertake the interview but she was again unsuccessful failing on essential criteria. Wade disputed the requirement to go through the competitive interview process; she felt an adjustment should have been made, given her disability and lengthy absence from work, to waive this requirement.
Under the DDA 1995, the duty to make reasonable adjustments arises if there is a provision, criterion or practice (PCP) which puts the disabled person at a substantial disadvantage compared to persons who are not disabled. This reflects Archibald v Fife Council, in which an employer was required to place a disabled employee in an existing vacancy even if he was not the best candidate for the role. In particular, it was stated in Archibald that it might be a reasonable step to transfer an employee to an existing vacancy without competitive interview requirements.
The EAT upheld the tribunal's decision as, whilst the duty to make reasonable adjustments was engaged, the employer had not breached its duty with Wade. The tribunal decided that it was reasonable and legal for Hallam to stipulate essential characteristics for a role and that hiring Wade, whom the employer believed was not suitable for the job, was not a reasonable adjustment.
Cox v Essex County Fire and Rescue Service
An employee's failure to cooperate in a process to establish a diagnosis may mean that an employer lacks requisite knowledge of the disability.
Essex County Fire and Rescue Service ("Essex") dismissed its deputy finance director ("DFD") despite his claims that he suffered from bipolar disorder. Prior to the DFD's employment he informed Essex that he had suffered from mild depression. This was, according to the DFD, exacerbated after a workplace accident which left the DFD with cracked ribs. After exacerbating symptoms the DFD told Essex he was suffering from bipolar disorder. However, Dr Murphy of Occupational Health ("OH") claimed that the DFD was unlikely to be suffering from an illness covered by the Disability Discrimination Act 1995. OH tried to call on a report from the DFD's personal GP but the release of any report was blocked by the DFD.
By the time of a tribunal hearing, Essex accepted that the DFD was disabled by reason of bipolar disorder. However, the tribunal held that, at the relevant time, Essex did not know, and could not reasonably have been expected to know, that the DFD was disabled. Essex had asked the right questions both during the application process and during the DFD's employment. The failure of the Claimant to release medical documentation and the lack of a "definitive diagnosis of the Claimant being bipolar" led to the Claimant's appeal for dismissal for gross misconduct being rejected.
Under the DDA, an employer was not under a duty to make reasonable adjustments if it did not know, and could not reasonably have been expected to know, both that the person in question had a disability and that s/he was likely to be at a substantial disadvantage compared with non-disabled persons.
Croft Vets Ltd and others v Butcher
Mrs Butcher worked as a finance and reception manager at a veterinary practice. The practice opened a new hospital whilst simultaneously installing new telephone and software systems. One of Mrs Butcher's roles was the reporting of bad debt and Croft Vets Ltd ("Croft") felt that she had misreported the debts. Mrs Butcher was told to focus exclusively on bad debt reporting. Mrs Butcher was offered a lower grade job with less pay or a scheme to adopt a programme to improve her performance. Mrs Butcher's GP had documented continued work-related stress and "classical depression". A private consultant recommended that Croft pay for Mrs Butcher to undertake classes in cognitive behavioural therapy. It was after this recommendation that Croft ceased to contact Mrs Butcher. Mrs Butcher then resigned, claiming Croft was the cause of her mental illness and her disability under the Disability Discrimination Act 1995.
The EAT considered whether it would have been a reasonable adjustment for an employer to pay for an employee with work-related stress and depression to have private medical treatment on the recommendation of a clinical psychiatrist.
The EAT held that Mrs Butcher was suffering predominantly from work related stress although there were other lesser factors. The EAT also ruled that there was reasonable evidence to suggest that the treatments would have been successful. In addition, the EAT also stated it would have been reasonable for Croft to have at addressed Mrs Butcher's concerns after she had written to them. On balance the Tribunal held that it was reasonable to expect the employer to have addressed the proposed adjustment in writing. Failure to do so was a breach of the DDA.