The Claimant, who suffered various disabilities (Ehlers-Danlos Syndrome, Dyspraxia and Dyslexia), bought a number of complaints in Employment Tribunal (‘ET’), all of which were dismissed. The Claimant appealed against the ET’s decision in respect of three claims of discrimination by reason of a failure to make reasonable adjustments: (i) in relation to what she complained was a PCP that conventional software provided by the Respondent be used; (ii) in respect of her claim regarding a failure to provide specialist software updates; and (iii) in relation to her complaint that she suffered substantial disadvantage by not being able to access the Respondent’s guest WiFi on her lap-top.
Held: allowing the appeal
(i) The ET erred in holding that the Claimant had not demonstrated a PCP because the requirement identified only related to her. That was not how the Claimant’s case was put. Her complaint was in respect of the general requirement that employees (including her) use the conventional software supplied. Although the Claimant had been provided with specialist software, to the extent that this did not properly function, the PCP continued to apply to her. The ET had further erred in finding that a PCP that might cause the Claimant to be less efficient (hence her request for adjustments that would improve her efficiency) could not establish substantial disadvantage: being subject to a PCP that causes an employee to be less efficient might well mean they suffer a more than minor or trivial disadvantage. Moreover, the ET ruling’s in this regard could not be saved by its alternative finding that the Respondent had taken all reasonable steps to remove any substantial disadvantage: it had failed to identify the nature and extent of the substantial disadvantage in issue and was accordingly unable to determine what adjustments were reasonable (Environment Agency v Rowan [2008] ICR 218, EAT applied).
(ii) As for the specialist software updates, the ET had erred in its approach to substantial disadvantage, again failing to allow that questions of efficiency might be relevant to the determination of substantial disadvantage. It further failed to engage with the Claimant’s case that the issue was not merely whether she had been provided with functional dictation equipment – without the software updates that was not fully functional. It was no answer to find that the issue was one of ‘maintenance’: if there was an on-going obligation to provide the adjustments in issue, that would include (so far as reasonable) the maintenance of the software by way of necessary updates; the ET had failed to demonstrate engagement with this point.
(iii) The same error of approach to substantial disadvantage was apparent in relation to the third complaint – the Claimant’s lap-top access to the Respondent’s WiFi. Although the ET also said that any disadvantage in this regard was not substantial, because it took less than a month to resolve, this failed to take account of the earlier finding that the Claimant had raised a general issue regarding the ability to access WiFi over a year previously.
Citations:
[2019] UKEAT 0043 – 19 – 1710
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 November 2022; Ref: scu.650901