Disability Discrimination – Reasonable Adjustments
The Claimant suffers from ME/chronic fatigue syndrome (‘CFS’). This makes it more likely that she will have higher absences than other employees. In 2011, the Respondent made an adjustment to its sickness absence management policy (‘SAMP’) whereby the Claimant could have up to 5 absences in a 12-month period before triggering the policy instead of the standard 3 absences. That adjustment seemed to operate successfully for a period of almost 4 years. However, the adjustment was abruptly removed in 2015. Whilst the Respondent made other adjustments, such as a reduction in working hours, the Claimant was unable to meet the attendance requirements under the SAMP and was subjected to the various stages of the absence management process leading eventually to her dismissal. Her complaints of discrimination because of something arising in consequence of her disability and for failure to make reasonable adjustments (under ss.15 and 20 of the Equality Act 2010 (‘the 2010 Act’) respectively) were upheld by the Employment Tribunal (‘the Tribunal’) as was her claim of unfair dismissal, albeit that it was held that there was a 50% chance that she would have been dismissed within 4 months in any event. The Respondent appealed on the grounds that: (a) the decision on the s.20 claim was inadequately reasoned, (b) the Tribunal erred in its approach to justification; (c) the decision on unfair dismissal, which was based on the findings on justification, was similarly flawed; and (d) the decision on the Polkey reduction was inadequately reasoned. As to the Tribunal’s subsequent judgment on Remedy, the Respondent appealed on the ground that the Tribunal erred in its analysis of causation.
Held: Dismissing the Liability Appeal, that: (a) the Tribunal had not erred in its approach to the claim for reasonable adjustments and gave adequate reasons for its decision; (b) the Tribunal was entitled to deal with justification in the way that it did, particularly given that this was a case where an adjustment that had worked well for years was abruptly removed without cause; (c) as there had been no error in the justification decision, the challenge to the unfair dismissal claim fell away ; and (d) the Polkey decision was adequately reasoned.
The Remedy Appeal was also dismissed as there was no inconsistency between the finding that the Claimant would be able to return to some form of work within 12 months and the award of 2 years 9 months’ future loss of earnings.
Judges:
Choudhury J P
Citations:
[2019] UKEAT 0249 – 18 – 1810
Links:
Jurisdiction:
England and Wales
Employment, Discrimination
Updated: 01 September 2022; Ref: scu.643081
