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This post looks at the recent Employment Appeal Tribunal case of Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley, a case concerning disability discrimination and failure to make reasonable adjustments.

The facts

Mrs Bagley (“the Claimant”) commenced employment with Newcastle Upon Tyne Hospitals NHS Foundation Trust on 21 July 2008 as a radiographer. However, she was involved in an accident at work in November 2008 in which she suffered damage to her right arm. She was then off work sick until March 2009. Contrary to her employer’s normal policy she was allowed to transfer the whole of her unused annual leave (over 70 hours) into the next year. Whilst the Claimant was off work she received one and a half full months sick pay (until January 2009). From January 2009 to March 2009 – after the full sick pay entitlement ended – her pay dropped to half her normal wages but she received a Temporary Injury Allowance which supplemented her salary.

The Claimant was “phased” back into work from March 2009. She initially worked four hour shifts (instead of her normal eight) five days a week and after the first week back took a week’s annual leave. However, the Temporary Injury Allowance was not available to part-time workers. The Claimant was unhappy about this because she was only being paid for approximately 20 hours’ work a week, not her normal 37.5. She could not work full-time because of the injury but could not work part-time because of the drop in pay. She complained about this and was told that she would have to use her annual leave entitlement (a substantial portion of which had been transferred over from the previous year) to cover this. She was further told that the Trust had been advised by payroll that Temporary Injury Allowance was only available to those who were off work completely but that the necessary forms would be obtained so the Claimant could apply for Permanent Injury Benefit.

The Claimant subsequently went on sick leave on 19 May 2009 and did not return to work. She was paid the Temporary Injury Allowance until her dismissal on 10 February 2010 for the reason of capability (ill health). She was involved throughout this time period in discussions with management at the Trust to resolve her situation.

The Claimant subsequently submitted a claim to the Employment Tribunal which included a claim for failure to make reasonable adjustments on her employer’s behalf.

The law

Although this case was considered under the Disability Discrimination Act 1995 the definitions involved will be considered under the new legislation, the Equality Act 2010.

Under the Equality Act 2010 to succeed in a claim for a failure to make reasonable adjustments the Claimant must show:

  1. That they are disabled for the purposes of the Equality Act 2010; and
  2. That the employer (“the Respondent”) failed to comply with its duty to make reasonable adjustments

N.B. An important point to note is that prior to the introduction of the Equality Act 2010 a claim for indirect disability discrimination could not be advanced. This is now not the case.

Disability

To be defined as disabled under the Equality Act 2010 the Claimant must show that they are disabled (on the balance of probabilities).

The Claimant must therefore show that they have a mental or physical impairment (which isn’t caused by drugs or alcohol), and that their employer knew of the disability and the likely effect of the disability on the Claimant. Further, the Claimant must show that the disability affects their ability to participate in professional life on a daily or frequent basis and that the effect is substantial (i.e. more than trivial or that they have been assessed by someone medically qualified and advised not to carry out the work). The Claimant must also show that the disability is long-term and that they could have carried out the work but for the disability.

The Claimant must normally gather evidence to substantiate their claim of disability. This will either involve an admission by the Respondent relating to them treating the Claimant as disabled or the Claimant must commission a report from a suitable expert (possibly their GP) regarding their status.

Failure to make reasonable adjustments

If the Claimant is disabled, the Respondent has a duty to make reasonable adjustments to accommodate their disability at work. The key consideration here is normally the reasonableness  of the actions that the Respondent has undertaken and this will be particular to the facts of the case. If the employer has taken no steps to remedy the disadvantage the Claimant suffers then it is unlikely that they will have complied with their duty to make reasonable adjustments. Reasonableness depends on a host of factors, including actions undertaken, resources open to the employer etc.

The duty arises if:

  • The Claimant is disabled;
  • there is a PCP (“Provision, Criteria or Practice”), physical feature, or lack of an auxiliary aid
  • which puts a disabled person at a substantial disadvantage relating to a relevant matter
  • in comparison to comparable workers who are not disabled

The Respondent will fail in its duty if it fails to make reasonable adjustments.

The Employment Appeal Tribunal’s decision

The Employment Appeal Tribunal considered that the Employment Tribunal had erred in law in its decision that the Respondent had failed to make reasonable adjustments to the workplace to accommodate the Claimant’s disability. This was based on (among others) the following issues relating to liability and compensation

Liability

Firstly, the EAT believed that the ET had been confused at some points in its judgment about the difference between indirect discrimination and the duty to make reasonable adjustments. This had led to the Tribunal considering whether more disabled people would have been affected by the practices, provisions, and criteria of the Respondent rather than whether the Respondent had failed to make reasonable adjustments to workplace issues which could discriminate against disabled people.

Secondly, the PCP’s that had been identified by the Employment Tribunal were not in fact PCP’s.

Thirdly, if the PCP issue was ignored then the PCPs identified were not in fact discriminatory as they would have applied equally to disabled as to non-disabled persons.

Compensation

The Employment Tribunal initially awarded £30,000 for injury to feelings and £10,000 for aggravated damages. The Employment Tribunal found that the injury to feelings award was disproportionate in the circumstances and outside of the “Vento” bracket. It therefore reduced the £30,000 award to £11,000 and, further, reduced the compensation for aggravated damages to nil.

Our thoughts

This case is an interesting example of the Employment Tribunal becoming confused in its original judgment as to the definition and application of the various grounds of discrimination. Although it is not clear from the EAT judgment what other grounds of discrimination were claimed by the Claimant, the ET obviously confused the grounds of indirect discrimination and failure to make reasonable adjustments. Further, this is also an example of a case where the findings of two tribunals can be very different on key areas of law (such as the PCP issue above).

About Chris Hadrill

Chris is a specialist employment lawyer at Redmans. He specialises in contentious and non-contentious employment matters, including breach of contract claims, compromise agreements and Employment Tribunal cases. He writes on employment law matters on a variety of websites, including Direct 2 Lawyers, Lawontheweb.co.uk, LegalVoice, the Justice Gap and his own blog. Contact Chris by emailing him at chadrill@redmans.co.uk

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