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The Employment Appeal court has given judgment in the case of Jobcentre Plus v Higgins (citation: UKEAT/0579/12/DM) in which HHJ Richardson sets out the steps an Employment Tribunal should follow when considering an alleged failure to make a reasonable adjustment.

Given that the test applied to employers is not the more familiar objective one but more onerous, I thought it would be timely to look at the entire issue of reasonable adjustment.

Firstly I will look at the advance in the law made by this case and then return to a general view of the law in this area.  

Background to the case

The claimant had worked part-time for the respondent for many years but was absent from June 2009 with heart problems. In May / June 2010 discussions started over his return to work under an existing PTMG policy (Part-time Attendance on Medical Grounds). In August 2010 he was passed fit for work but with a phased return to work recommended by his GP. The policy was that this phased return to work would take place over a 13 week period but the claimant wanted longer – up to 26 weeks. A letter to the claimant reiterated that there would be no extension and failed to mention any form of review. T

Mr Higgins was employed as an administrative officer in a benefits delivery centre in Liverpool. He was a long serving employee, having commenced work in 1979. He worked part-time – 23 hours per week over Monday, Tuesday and Wednesday. However in June 2009 he began a long period of absence by reason of a heart condition. There was a complication – chronic obstructive pulmonary disease. (Mr Higgins was a disabled person for the purposes of the Disability Discrimination Act 1995 and the Equality Act 2010).

In January 2010 his GP gave him a medical certificate certifying that he was unfit for work for 6 months.The DWP’s policy was that this phased return to work would take place over a 13 week period but the claimant wanted longer – up to 26 weeks. A letter to the claimant reiterated that there would be no extension and failed to mention any form of review.

Approach to be taken by ET (as per judgement)

In a case where the employer is alleged to be in breach of the duty to make reasonable adjustments imposed by section 20(3) of the 2010 Act, the Tribunal should following the statutory wording identify;

  1. the employer’s provision, criteria or practices (PCP) at issue,
  2. the identity of the persons who are not disabled in comparison with whom comparison is made, and
  3. the nature and extent of the substantial disadvantage suffered by the employee.

“Without these findings the Tribunal is in no position to find what (if any) step it is reasonable for the employer to have to take to avoid the disadvantage.”  This position was stated clearly in Environment Agency v Rowan [2008] IRLR 20 at paragraphs 26-27 (Judge Serota QC). “Tribunals should give careful consideration to, and make findings concerning, each element of the statutory provision which is engaged in the case before it. Eliding different elements within the statutory definition, or failing to make clear findings concerning each element, leads to difficulty. Elements may differ in their importance from case to case, but it is good discipline to state conclusions upon them even if the conclusions appear obvious.”

The EAT in the Higgins case added one further point. “The duty to make an adjustment is a duty to take a “step” or “steps” to avoid the disadvantage. Just as the Tribunal should expect to identify the PCP, the comparators and the nature and extent of the substantial disadvantage, so it should expect to identify the step or steps which it was reasonable for the employer to have to take to avoid the disadvantage.”

The duty to make reasonable adjustments in respect of contractual hours potentially arose at least from the time when Jobcentre Plus [employer] received the “fit note” dated 2 August (see Schedule 8, paragraph 20).

Provision, criterion or practice (PCP)

 It is a well established that the concept of a PCP is wide. As the Code of Practice on Employment (2011) now puts it –

“The phrase …. is not defined by the Act but should be construed widely so as to include, for example, any formal or informal policies, rules, practices, arrangements or qualifications including one-off decisions and actions.”

From a practical view point, the phrase causes problems and it is important to keep in mind the whole of section 20(3) is designed to link together. The purpose of identifying a PCP is to see if there is something about the employer’s operation which causes substantial disadvantage to a disabled person in comparison to persons who are not disabled. The PCP must therefore be the cause of the substantial disadvantage. Wide though the concept is, there is no point in identifying a PCP which does not cause substantial disadvantage.

In this case the Mr Higgins was not saying that he was incapable of work. He was saying that he could return to work but (to begin with) only on reduced hours (supported by the “fit note”). So he was not saying that it was the requirement to work in itself which caused him difficulty. It was the requirement to work his contractual 23 hours per week.

The other PCP suggested to the Tribunal was the 13 week rehabilitation period stipulated within the policy. A moment’s thought shows that it was not the rehabilitation period which caused disadvantage for Mr Higgins. The rehabilitation period was a concession from the usual requirement to work contractual hours. It was the requirement to work contractual hours which caused the disadvantage. If the Tribunal had identified the rehabilitation period as the PCP it would have identified what was in reality a form of adjustment rather than the PCP which actually caused the difficulty.

The original Employment Tribunal thought the rehabilitation period was not the appropriate PCP because it contained a “sufficient provision” for review so as not to disadvantage Mr Higgins. This misses the point that “it was actually the requirement to work contractual hours which caused the disadvantage – the rehabilitation period mitigated that disadvantage to some extent but did not cause it.”

The duty to make reasonable adjustments in respect of contractual hours potentially arose at least from the time when Jobcentre Plus received the “fit note” dated 2 August (see Schedule 8, paragraph 20).

ReasonableAdjustments

The Statutory Framework

DDA 1995, s 4A sets out the substance of the duty to make adjustments and is the section that requires employers to make reasonable adjustments to prevent the PCP that they have applied having a disadvantageous effect.

DDA 1995, s 3A(2) provides that a failure to comply with the duty to make adjustments is discrimination.

DDA 1995, s 4 – Discrimination is only unlawful under the DDA 1995 if the circumstances fall within DDA 1995, s4. Before any question of a breach of duty arises therefore the tribunal must firstly determine whether DDA 1995, s 4 entitles the person to make a claim.

The Reasonable Adjustments Test

There are four steps to a consideration of whether a person has failed to make a reasonable adjustment:

  1. Is the person protected?
  2. Did the duty to make adjustments arise?
  3. What adjustments were reasonable?
  4. What did the employer know?

First Step – Is the Person Entitled to Make a Claim?

The starting point is for the claimant to show that he or she is entitled to the protection of the DDA 1995, s 4 and in a category of persons entitled to make a claim.

Second Step – Did the Duty to Make Adjustments Arise?

  1. identify the relevant PCP / physical feature
  2. identify the non-disabled comparator
  3. identify the nature & extent of disadvantage

Identifying the provision, criteria or practices (PCP) applied by or on behalf of the employer is the first step in determining whether the duty to make a reasonable adjustment has arisen.

The definition of PCP is very broad and includes the old term “arrangements”. The definition is in fact so broad that, so long as the alleged PCP is connected to the employment in some way, it is likely that it will qualify as a PCP.

Tribunals identify whether an employee has been substantially disadvantaged by an employer’s PCP by undertaking a comparison exercise. This exercise compares the claimant’s position with that of a non-disabled person who is known as the comparator. The comparison exercise for reasonable adjustments cases is different from the comparison exercises in other discrimination cases. The leading disability discrimination case dealing with the comparator is the case of Smith v Churchill Stairlifts [2006] ICR 524. 

The comparison exercise under the DDA 1995 asks whether the alleged disadvantage is substantial in comparison with persons, firstly who are not disabled, and secondly who are not disadvantaged by the PCP.

To illustrate, take an employer who has a rule that applicants who cannot type at 55 words a minute will not be offered an interview. The claimant in our example is disabled by arthritis which means that he cannot type at more than 40 words a minute. He is refused an interview. Four non-disabled people however were able to fulfill the criteria and were offered interviews. The PCP is the employer’s criterion that the candidate must be able to type at 55 words per minute in order to be offered an interview. The comparators in this example are the 4 applicants who were not disabled and who were not disadvantaged by the PCP because they were invited to an interview. 

Once the comparator is identified it is a relatively straightforward step to then identify the nature and extent of the disadvantage. An employer is required to make an adjustment to alleviate a disadvantage if the disadvantage is substantial. “Substantial” in this context means must be “more than minor or trivial”.

If we return to our example above the disadvantage is that the claimant was not invited for an interview. This disadvantage is clearly more than minor or trivial because, without an interview, the disabled person cannot succeed in obtaining employment.

Employers often find the question of what adjustments to make to be fraught with difficulty. How many adjustments should they make? How much money is it reasonable to spend? Do they have to consult medical evidence? 

It is often helpful for employers, when they are considering this issue to know how a tribunal would determine whether an adjustment was reasonable. If an employer understands this they can at least judge more accurately for themselves what the tribunal might expect of them in the particular circumstances that they are facing.

When looking at the question of whether a reasonable adjustments was not made if the tribunal considers that there was an adjustment that could have been made and which was reasonable then the employer will be found to have breached the duty. 

The tribunal is only concerned with what the employer did or did not do (motive is irrelevant). The employer can accidentally comply with the duty. Equally the employer may try very hard to comply with the duty but fail to make an adjustment that the tribunal considers would have been reasonable,. v.i.z. it is no defence for an employer to argue they did not know that a particular adjustment was available.

Although an employer will have a defence if it did not know that the person was disabled and disadvantaged by its PCP the objective nature of the duty to make adjustments makes it a very onerous duty and also makes it harder for employer to predict whether they have complied with it.

Since the tribunal is only concerned with what the employer did and did not the employer cannot breach the duty by failing to consult with a disabled employee or by failing to consider a particular adjustment. Since the reasonable adjustment must do something to actually alleviate the disadvantage all that matters is whether the adjustment was or was not made (Tarbuck v Sainsburys Supermarket [2006] IRLR 664). Consultation is only relevant insofar as it makes it more likely that the employer will comply with his duty if he has consulted the disabled employee.

The Reasonableness of an Adjustment

The best place to start any consideration of the reasonableness or otherwise of an adjustment is DDA 1995, s 18B(1). That section provides:

18B(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to—

(a)     the extent to which taking the step would prevent the effect in relation to which the duty is imposed;

(b)     the extent to which it is practicable for him to take the step;

(c)     the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;

(d)     the extent of his financial and other resources;

(e)     the availability to him of financial or other assistance with respect to taking the step;

(f)      the nature of his activities and the size of his undertaking;

(g)     where the step would be taken in relation to a private household, the extent to which taking it would —

  • (i)      disrupt that household; or
  • (ii)    disturb any person residing there.

Of course this is not an exhaustive list and other factors may well be relevant.

As we have already seen the adjustment must be effective in order to be considered reasonable and it is clearly unreasonable to expect an employer to make an adjustment that does nothing to alleviate the disadvantage suffered by the disabled person.

Other factors such as the expense of the adjustment are also relevant and the more expensive the adjustment the more unlikely it is that the tribunal will consider it to be reasonable.

The tribunal must consider the circumstances as a whole and so, for instance, the expense of the adjustment may be less relevant where the company in question is very wealthy and has many thousands of employees.

Conclusion

We have now seen that the ET is to examine “the step or steps which it was reasonable for the employer to have to take to avoid the disadvantage.”

From an employers perspective we remain with the need to be well informed. Ignorance is no defence. The most obvious way for an employer to increase the chances (and get this right) is to consult widely and not just with the disabled person him/herself.

Case citation: Jobcentre Plus v Higgins (neutral citation: UKEAT/0579/12/DM)

 

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