OCS accepted the employee was disabled. He worked alone and at night. His security duties included patrolling the exterior of the premises. He refused to undertake outside patrols and was disciplined. He claimed his employer had breached its duty to make reasonable adjustments. He argued that, as a diabetic, he may suffer unpredictable hypoglycemic episodes that could lead to serious injury or in an extreme case to death, particularly if he could not obtain assistance. He said his employer should have taken steps to reduce the risk of injury occurring as a result of him suffering such an episode.
Tribunal At a pre-hearing review, an employment judge identified the criterion or practice (PCP) as the requirement to carry out external patrols. However the judge decided this was not likely to put Crossland at a substantial disadvantage compared to non-disabled people without his disability because, as a diabetic, the risk was no higher outside the premises than inside them. The judge therefore made a £250 deposit order that Crossland would have to pay if he wanted to proceed, as the claim was unlikely to succeed.
EAT The Employment Appeal Tribunal found the employment judge had been right to find the claim had little prospect of success. In that the criterion or practice had been correctly identified and that the consequences of a hypoglycemic episode occurring outdoors could not be substantially worse than if it occurred inside. If, for example, he was unable to phone or let a rescuer on to the site, that would be equally so if he were inside the premises. Therefore, it was hard to see how the requirement to patrol outside was likely to place him, as a diabetic, at a substantial risk.
Deciding whether a statutory duty applies requires a four-step approach.
Employers should ask:
- Is the employee disabled under the Act?
- If the answer is “no”, the duty does not arise.
- If the answer is “yes”, is it likely that the PCP places the disabled employee at a substantial disadvantage compared to non-disabled people because of that employee’s disability?
- For the duty to apply, two key conditions have to be satisfied: the disadvantage could well happen; and it must be more than minor or trivial.
Good, reliable and FREE practical advice can be found in the EHRC Employment Statutory Code of Practice.
Summary of the law
Equality Act 2010 says where an employer knows, or reasonably ought to know, an employee is disabled and it is likely that a provision, criterion or practice (PCP) puts that employee at a substantial disadvantage in comparison with those who are not disabled, the employer has a duty to take reasonable steps to avoid that disadvantage.
- Case law tell us that ‘likely’ means “could well happen”.
- ‘Substantial’ is defined in the Act as meaning “more than minor or trivial”.
- The purpose of the comparison with non-disabled people is to establish whether the PCP puts the disabled person at a disadvantage compared to co-workers who do not have that disability; no actual comparator, or comparator group, is required.