Katie Buchanan, Solicitor, highlights how the duty to make reasonable adjustments requires employers to take positive action to remove certain disadvantages or barriers to disabled people which may be posed by the employer’s working practices or the physical features of the premises.
This imposes a very specific duty on employers, however, as was demonstrated in the recent case of South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley UKEAT/0341/15/DM, the scope of this duty can be wider than some employers may initially think.
Ms Billinglsey was employed as a data input clerk. She suffered from dyspraxia, which meant that she found it difficult to absorb and process information, and was more likely to make errors. A report was commissioned into her performance, and it was recommended that she be provided with various technical aids and 50 hours of specialist tuition. These recommendations were not implemented, despite Ms Billingsley’s repeated requests.
Mrs Billingsley’s performance was monitored and eventually, nearly 3 years after they had first been recommended, she was provided with aids and given 20 hours of specialist tutoring (note that the original recommendation was 50 hours). Her performance at work did improve for a while, but later dropped again, which Mrs Billingsley attributed to the fact that her supervisor had gone on maternity leave.
The Trust began a formal review procedure, with Ms Billingsley now being told that there was no room at all for errors in her work. This process culminated in her dismissal on capability grounds and she brought claims of unfair dismissal and disability discrimination.
The Tribunal at first instance held that the Respondents had failed to make two reasonable adjustments: first, providing technical aids in good time, and in any event well before the monitoring of the Claimant's performance began; and secondly, that they had only provided 20 hours of the specialist tuition recommended. The Tribunal considered the latter to be a significant failure on the part of the employer in that “…a specialist had made a recommendation of a step that could be taken which would assist the claimant, and the respondent had not implemented it. We did not consider moreover that an inference that the extra 30 hours tuition had no real prospect of helping could be drawn when…the specialist tuition that the claimant did receive was very helpful to her and indeed…led to an improvement in her performance.”
The Tribunal concluded that the Trust “did too little too late” by way of reasonable adjustments.
The Trust appealed to the EAT, arguing that the Tribunal should not have considered whether there was a real chance that these adjustments would have avoided dismissal. They contended that an adjustment was only a reasonable one if it will work and that if there is only a chance of success, then it cannot be considered a reasonable adjustment.
The EAT disagreed and held that it was not necessary for an employee to show that a proposed reasonable adjustment would be entirely effective. It is enough that the proposed adjustment gives a chance of avoiding unfavourable treatment.
This case is a helpful reminder to employers not to outrightly dismiss proposed adjustments too quickly on the grounds that they may not work. It also demonstrates that adjustments should be made without delay and in particular before commencing any kind of performance review. In short, if there is a chance that a proposed adjustment will work, the employer should consider making it. Ultimately, however, when considering whether a proposed adjustment was a reasonable one, a Tribunal will consider the size of the employer’s undertaking, how practical the proposed step was and any financial implications. Therefore certainty of success is simply another factor for the employer to consider in reaching a decision.