In the recent Employment Appeal Tribunal (“EAT”) decision of Salford NHS Primary Care Trust v Smith [UKEAT/0507/10], the EAT reiterated the duties of businesses to make “reasonable adjustments” for employees with a disability. The EAT also set out what the limitations on those duties are.
Section 4A(1) of The Disability Discrimination Act 1995 (“DDA”) provides that “where… a provision, criterion or practice applied by or on behalf of an employer… places [a] disabled person at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all of the circumstance of that case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”
The Claimant, Mrs Smith, was a physiotherapist employed by the Respondent, Salford NHS Primary Care Trust (“Salford”). She was signed off on long term sick leave with chronic fatigue syndrome and it was accepted that she was disabled within the meaning of the DDA. During her sick leave, Mrs Smith’s role effectively ceased to exist. After various meetings and alternative roles being offered to Mrs Smith but declined, Mrs Smith resigned from Salford after receiving a letter from it in which it was made clear that it would have to consider employment options including termination of Mrs Smith’s employment. Mrs Smith brought a claim for disability discrimination and constructive dismissal.
The Employment Tribunal Findings
The Employment Tribunal (“ET”) found that Salford had discriminated against and unfairly dismissed Mrs Smith. Salford appealed. Salford had applied a PCP (provision, criteria or practice), namely the expectation that Mrs Smith would perform her full role within her contracted hours. She was thereby placed at a substantial disadvantage by reason of her disability as she was unable to deal with her work effectively. The effect of the PCP on Mrs Smith and the extent of the substantial disadvantage were that she was unable to multi-task, deal with clients or set up emotional barriers. The ET described this as a “mountain” Mrs Smith would have to climb if she were to perform her role. Further, she could not work in a busy or noisy environment.
The ET further held that Salford had failed to make reasonable adjustments, although a career break would not have been a reasonable adjustment. It should have produced something for Mrs Smith to do by way of rehabilitation, not necessarily productive work. It was therefore reasonable for Mrs Smith to conclude that trust and confidence had broken down and she was therefore entitled to treat herself as constructively dismissed.
Salford appealed and Mrs Smith cross appealed on the finding that a career break was not a reasonable adjustment.
The Employment Appeal Tribunal Findings
The EAT ruled that there had been no failure by Salford to make reasonable adjustments. It helpfully set out a reminder of the meaning of reasonable adjustments, as follows:
- Reasonable adjustments are limited to those that prevent the PCP or feature from placing the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled.
- Reasonable adjustments are primarily concerned with enabling the disabled person to remain in or return to work with the employer.
- Adjustments that do not have the effect of alleviating the disabled person’s substantial disadvantage are not reasonable adjustments within the meaning of the DDA. Consultations, trials and exploratory investigations do not qualify as reasonable adjustments.
- Any proposed reasonable adjustment must be judged against the criteria that they must prevent the PCP from placing the disabled person at a substantial disadvantage.
The EAT held that the ET was wrong to say that it would have been a reasonable adjustment for Salford to propose some “light duties” for Mrs Smith which her GP could have signed off as a form of rehabilitation. This was not a reasonable adjustment as it did not mitigate the effects of the PCP. The disadvantage suffered by Mrs Smith as a result of the PCP would not have been alleviated by rehabilitation in the form of “light duties” as she was unable to return to her former position for the reasons set out by the ET in its judgment. This would not have amounted to an “adjustment” by Salford and the practical consequences faced by Mrs Smith would not have been mitigated. The ET had failed to give adequate reasons to explain what proposals for non-productive work should have been made by Salford and when and how these would have alleviated the substantial disadvantage identified.
Additionally, the EAT said, Salford did not have a closed mind when it came to the issue of Mrs Smith’s disability. It did what an employer should have done. It explored retraining Mrs Smith in IT, which she was unwilling to undertake. It also proposed her attending the workplace to keep in touch with her colleagues which was something Mrs Smith did not feel able to do. After investigating the possibilities, it concluded that there was no job which Mrs Smith was capable of doing at the time, whether full time or part time, and certainly not her original job. Salford had written to Mrs Smith on several occasions setting out the efforts it was making to find her an alternative role and Mrs Smith at no point disagreed with the content of these letters. Mrs Smith was asked to attend two meetings with Salford to discuss possible adjustments but she chose not to attend. Mrs Smith could not even attend her workplace to meet colleagues as this was too stressful for her.
For the same reasons, it was not a reasonable adjustment for Salford to have permitted Mrs Smith to take a career break. This would be “highly irregular and contrary to proper and recognised industrial practice, let alone good industrial practice.” A career break would in no way have prevented the disadvantage caused to Mrs Smith by the PCP or alleviated her inability to multi task, deal with clients or set up emotional barriers.
The ET was also wrong to say that Mrs Smith had been constructively dismissed. The conduct amounting to a breach of trust and confidence entitling an employee to treat him or herself as constructively dismissed must be such as to amount to a repudiatory breach of contract so the individual act or omission, or the cumulative effect of a number of acts or omissions, must be significant. This is an objective test. Salford’s behaviour was not repudiatory. The reference in their last letter to Mrs Smith to a possibility of termination on the grounds of capability was both standard and reasonable in the circumstances.
Employers should always treat disabilities with the utmost care and ensure that as much is done as possible to accommodate and assist the disabled person so that if a claim is brought, the employer can show reasonable conduct and efforts throughout. Here, Salford had done everything within its power to accommodate Mrs Smith in an alternative role and explore all possibilities with her. There was no adjustment which could have been made by Salford which would have mitigated the disadvantage suffered by Mrs Smith.