Disability Discrimination – The appeal was in respect of a failure to make a reasonable adjustment. The claimant was required to attend an interview (the PCP) in a redundancy situation. The argument was twofold, whether the ET had correctly identified that there was no disadvantage and whether further adjustments than delaying the interview should be considered.
In considering whether the duty to make an adjustment has arisen because there is a substantial disadvantage an ET applies S. 20 EA 2010 ‘in comparison with persons who are not disabled’. The relevant matters to consider are effects of the particular disability which mean that the employee has difficulty in complying with a PCP in comparison to someone without that disability. Where the ET’s finding is that the claimant suffered problems with memory and concentration and with social interaction such problems would probably hinder effective participation in an interview. The ET would then have to consider whether that disadvantage arising from the effects of the disability was more than minor or trivial.
In dealing with any question of an adjustment pursuant to EA 2010 is s.20(3) ‘ to take such steps as it is reasonable to have to take to avoid the disadvantage’ any step examined must avoid or alleviate the effect which creates the comparative disadvantage; here delay was held to be an adjustment. In order for delay to be an adjustment it would have to allow sufficient time for the effects hindering participation in an interview to diminish to the extent where they were only trivial to be considered an adjustment within the meaning of the statute. The ET’s findings pointed to a significant impairment from which recovery would be protracted. A short delay could not be considered an adjustment in the circumstances as it would not alleviate the disadvantage.
Causation is an essential element of disadvantage, where the employee would not have taken part in the interview for reasons unconnected with disability, there is no causation. The ET had evidence upon which it was entitled to draw the conclusion that the claimant did not attend out of choice and that did not relate to his disability.
The claimant argued he should have been ‘slotted’ into a role without interview. The ET decided that there was no step (other than delay) it was reasonable for the respondent to have to take. This was a collective redundancy process where selection applied to thirteen employees. The ET had accepted the respondent’s evidence that there was no other reasonable step; this was a rational conclusion. Slotting in would have alleviated the disadvantage to the claimant but would have impacted on others in the redundancy process. Making an adjustment is not a vehicle for giving any advantage over and above removing the particular disadvantage. Thus a vacancy can be filled (see Archibald v Fife Council [2004] IRLR 651) as a reasonable step. However, in the circumstances of this case including impact on other employees, the ET was entitled to conclude that there was no other step for the respondent to have to take including slotting in.
Citations:
[2022] EAT 166
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 07 December 2022; Ref: scu.683361