Duty to make reasonable adjustments

Employment Law - Disability Discrimination - Equality Act 2010 - Reasonable Adjustments - Settlement Agreements

 

The recent case of Wilcox v. Birmingham CAB Services Ltd [2011], illustrates that if an employer does not know, and could not reasonably be expected to have known that an employee is disabled, there is no duty on the employer to make reasonable adjustments.

Duty to make reasonable adjustments

Section 20 of the Equality Act 2010, embodies the general duty on employers to make reasonable adjustments to policies, practices and physical features of the workplace that place disabled employees at a substantial disadvantage compared to other employees.

Exception

An exception to this duty exists where an employer does not know, and could not reasonably be expected to have known, that the employee is disabled (paragraph 20 of Schedule 8 of the Act).

Interpretation

There has been much debate around the interpretation of the defence/exception in light of the following Employment Appeal Tribunal ("EAT") decisions:

  In Eastern and Coastal Kent Primary Care Trust v. Grey, it was held that:-

  • The employer had to show that it did not know about the disability; and
  • It did not know that the disabled employee was likely to be put at a substantial disadvantage compared with non-disabled employees.

In Secretary of State for Work and Pensions v Alam, it was held that the appropriate considerations were:-

  • whether the employer knew that the employee was disabled; and
  • whether his disability was liable to place him at a disadvantage.

If the answers to both of the above were in the negative, the tribunal asked whether the employer ought to have known both.

The defence was further reconsidered in Wilcox v. Birmingham CAB Services Ltd.

  • In 2006 Ms Wilcox accepted new terms and conditions of employment from her employer, the Citizens Advice Bureau; this included taking a pay cut.
  • In 2007 Ms Wilcox submitted a flexible working request. Her reason for the request was that due to the pay cut, she could not afford the driving and parking costs but further, was unable to take public transport due to anxiety.
  • At this point, she had not sought medical advice about her anxiety issues.
  • Her request was subsequently refused, but her employer encouraged her to seek medical advice.
  • Multiple meetings ensued between Ms Wilcox and her employer in relation to her poor attendance and the grievance she raised in relation to her rejected flexible working request.
  • Although her employer tried to obtain a medical report about her anxiety issues, Ms Wilcox was generally not forthcoming in giving details of her condition.
  • Eventually Ms Wilcox obtained a medical report, but could not reach an agreement with her employer. As a result, she resigned and brought various claims against her ex-employer including a claim of disability discrimination by failure to make reasonable adjustments.
  • In light of the psychiatric report produced during proceedings, the employer conceded that, at all material times, Ms Wilcox had been disabled.

Tribunal

  • The tribunal concluded there was no way that the employer could have known that the claimant had a disability as the evidence up until the production of the psychiatric report had been conflicting. 
  • In the absence of a conclusive medical report, it would be unreasonable to find that the employer had knowledge of the disability.

 Employment Appeal Tribunal

  • The EAT agreed with the Tribunal.
  • The employer had not been put on notice of the claimant's disability.
  • With regards to the judgements in Grey and Alam, the EAT said there was no duty to make reasonable adjustments in either case unless the employer had actual or constructive knowledge of the disability.
  • However, it clarified that unless the employer had actual or constructive knowledge of the disability, the question of whether the employer's practices or a physical feature of the workplace placed that employee at a disadvantage compared with non-disabled employees, could not be considered.

If you require further information please contact us at enquiries@rtcooperssolicitors.com or visit one of the following pages:

© RT COOPERS, 2011. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.
 

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