DISABILITY DISCRIMINATION – DUTY OF REASONABLE ADJUSTMENT
The claimant is a science teacher. On account of mental ill health amounting to a disability she became unable to continue in her teaching role, and had significant periods of sickness absence.
In March 2016 the claimant returned to work in the distinct role of cover supervisor which attracted a lower rate of pay. However, she continued to be paid at teachers’ rates temporarily while she tried out the cover-supervisor role for a three-month probation period, and then until a grievance, and grievance appeal, regarding the respondent’s handling of matters had run their course in November 2016.
Thereafter OH advice indicated that the claimant remained long-term unfit to return to the teaching role, but was fit to carry out the cover supervisor’s role. She accepted an offer to continue in that role going forward, at the rates applicable to it. The Tribunal dismissed a claim that it was a failure to comply with the duty of reasonable adjustment not to continue to pay the claimant at teachers’ rates from November 2016 onwards. The claimant appealed.
There was also a cross-appeal against the Tribunal’s finding that the relevant PCP had been applied and placed the claimant at a disadvantage because of her disability, as at November 2016. The cross-appeal was dismissed in particular having regard to the contents of the November 2016 OH report indicating that the claimant was unfit to take on the particular responsibilities of a teacher at that time.
The claimant’s appeal was also dismissed. The Tribunal had correctly directed itself as to the law, and properly concluded, in light of its findings of fact, that it was not reasonable to expect the respondent, by way of an adjustment, to continue to pay the claimant at the rates associated with the old role, once the probation period and grievance processes had been completed. The Tribunal had properly found that it was a reasonable adjustment to do so, during the currency of those processes, in order to support her return to work; but that these considerations thereafter no longer applied. The Tribunal was not wrong to take account of the significant additional cost that would be involved in continuing to pay the claimant at teachers’ rates indefinitely. It had not erred in also taking account of the evidence of a witness that the respondent was facing financial pressures at the time, among other factors, when concluding that the proposed adjustment was not reasonable. The Tribunal’s reasoning in this regard had been properly clarified in what amounted to a response to a Burns/Barke reference from the EAT. The overall conclusion was, in any event, wholly justified, and in line with the guidance in the authorities.
The judge had also not erred in refusing to accept the evidence of published accounts of the respondent as justifying a reconsideration under Ladd v Marshall. This was not a case where the respondent had won on the basis of an unanticipated line of argument about cost, such that it could not have been foreseen that the evidence might be needed (if the claimant thought it relevant). The judge was in any event entitled to conclude that it was not the case that this material would probably have had an important influence on the result of the claim.
All of the grounds of appeal against the original decision and reconsideration, and the cross-appeal, were therefore dismissed.
[2021] UKEAT 0099 – 20 – 2807
Bailii
England and Wales
Updated: 12 September 2021; Ref: scu.666684
