Reasonable adjustments and discrimination arising from a disability

Case helpfully clarifies an important aspect of the interaction between reasonable adjustments and s.15 discrimination claims.

An employer is at risk of discriminating against an employee if they treat the employee unfavourably because of something that arises in consequence of the employee’s disability and the employer cannot show that the treatment of the employee is a proportionate means of achieving a legitimate aim (s.15 Equality Act 2020 (‘EqA’)).

An example would be where an employee suffers from a disability which results in a higher number of days of absence and the employee is then selected for redundancy because the scoring matrix took account of attendance records and did not discount days of absence with a clear link to the employee’s disability.

Case law on this topic has provided a two-stage test for tribunals to determine if the employer has discriminated against an employee in breach of s.15 EqA:

• did the employee’s disability cause, have the consequence of, or result in ‘something’; and
• if so, did the employer treat the employee unfavourably because of that ‘something’?

A recent case considered whether an employer struggling to put reasonable adjustments in place resulted in the employer discriminating against the employee for the purposes of s.15 EqA and highlighted the distinction between an employee being treated unfavourably in consequence of something arising from a disability as opposed to being treated unfavourably ‘because of’ their disability.

Case: Robinson v Department for Work and Pensions

Mrs Robinson worked as an admin officer for DWP when she suffered a serious migraine that led to her developing blurred vision. This substantially affected Mrs Robinson’s ability to undertake day-to-day activities and made it impossible for her to use some key software at work as doing so led to her suffering migraines.

DWP’s workplace adjustment team recommended that Mrs Robinson receive certain magnification modifications to her computer that would enable her to do her job without triggering migraines. However, there were problems making the necessary adjustments and once complete Mrs Robinson still found that she developed migraines.

A further risk assessment was carried out and more adjustments made, but ultimately it was determined that no adjustments would allow Mrs Robinson to operate the key software without suffering migraines. In the meantime, Mrs Robinson raised grievances about the way DWP had responded to her needs.

Mrs Robinson’s grievance was part-upheld on the basis that significant mistakes had been made by DWP when implementing the adjustments, which led to delays and caused her stress. The grievance report concluded that, as a result, DWP had failed to protect Mrs Robinson from stress which affected her health and wellbeing. Mrs Robinson subsequently brought claims for discrimination arising from a disability under s.15 EqA and for a failure to make reasonable adjustments under s.20 EqA.

The tribunal dismissed the reasonable adjustments claim on the basis that DWP had taken all the steps it could to make reasonable adjustments by adapting Mrs Robinson’s equipment and continuing to try to resolve any issues. The fact that there was ultimately no adjustment available that would allow Mrs Robinson to undertake her original job without suffering migraines also meant that the duty did not apply. The tribunal upheld the s.15 discrimination claim on the basis that Mrs Robinson's grievance outcome effectively amounted to an admission that DWP had treated her unfavourably by stating that DWP had failed in its duty of care to protect Mrs Robinson from stress due to the delays in making the reasonable adjustments.

On appeal, the EAT noted that mishandling the implementation of recommended adjustments could (in principle) be contrary to s.15 EqA (e.g. if an employer refused to implement them, delayed in doing so or made the individual pay for them), but the main issue was whether DWPs’ ‘treatment’ of Mrs Robinson was ‘motivated’ by the consequences of her disability.

In this respect the EAT held that the tribunal had not established sufficient facts to allow it to conclude that DWP’s failure to implement reasonable adjustments, and Mrs Robinson’s subsequent suffering, was motivated by the consequences of Mrs Robinson’s disability. The EAT upheld DWP’s appeal.

Mrs Robinson appealed to the Court of Appeal. In reviewing the EAT’s decision the Court of Appeal drew attention to the wording in s.15 EqA which states that the unfavourable treatment must occur ‘because of something arising’ out of the individual’s disability. It was not therefore enough for a claimant to show that they suffered unfavourable treatment as a simple consequence of the fact that they were disabled.  A claimant must rather show the employee’s unfavourable treatment by the employer was motivated by the ‘something’ arising from their disability. Although the employer in this case had conceded that its mishandling of the adjustment process had caused the employee stress, that did not mean that the mishandling of the process was ‘motivatedby’ the claimant’s stress, or anything else arising from her disability.

On this basis, the CoA upheld the EAT’s decision and Mrs Robinson’s appeal was dismissed.

Comment

Given the current circumstances it will be reassuring for employers to know that mishandling of genuine attempts to make reasonable adjustments will not, in and of itself, be a breach of s15 EqA.

However, such claims are still possible, as highlighted by the EAT, if the mishandling itself is in some way connected to the disability (for example, if it was motivated by the disability). As with all discrimination matters, this should encourage employers to ensure proper processes and procedures are followed to demonstrate that there are no discriminatory reasons for action taken or inaction.

Employers can defend a claim under section 15 if the unfavourable treatment is a proportionate means of achieving a legitimate aim. Employers are unlikely to be able to run this defence if they do not have (or take reasonable steps to find out) full information about the employee’s condition from medical professionals and/or occupational health advisers before taking a step which could disadvantage the employee.