Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

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

Want to talk to an expert employment law solicitor?

You'll receive a callback from a specialist within an hour

Leave a Reply

Your email address will not be published. Required fields are marked *

Our awards

Request a callback

    Your first name (required)

    Your last name (required)

    Your email (required)

    Your telephone number (required)

    Brief details of your enquiry

    Testimonials

    4.80 Average

    369 Reviews

    Fidel A

    Redmans Solicitors recently helped me navigate a recent employment termination settlement agreement. Chris Hadrill is very professional and you will be in good hands with him. I score Redmans 4 out of 5 because things had to move fast and felt the team member assigned to my case wasn't very responsive at times. Having said that, I was very happy with the outcome and have no hesitation in recommending their services.

    Posted 7 hours ago

    Nigel A

    Chris Hadrill is hugely impressive - the right blend of assured calm and savvy professionalism. I've already recommended him to friends and family.

    Posted 21 hours ago

    Matt O

    I was hugely impressed with the ease of being able to work with Redmans Solicitors and their professional approach. Mel was really clear around the process, and costings required and I felt comfortable throughout. I would certainly recommend.

    Posted 22 hours ago

    Bryan G

    Great response, and also happy to assist

    Posted 22 hours ago

    David L

    I was made a settlement offer by my employer to terminate my emplyment early. Redmans helped me understand the offer, and ensured that it was fair for someone in my position. They made a very stressful situation much easier. Excellent service.

    Posted 1 day ago

    Anonymous

    I can highly recommend Redmans. The service was professional and prompt and I would not hesitate to use them again. Thanks

    Posted 6 days ago

    Anonymous

    Overall I am satisfied with the performance from Redmans. The reason I have given 4 stars is that I had quite a lot difficulty in contacting the representative which was initially nominated for me. However, when I contacted Chris instead, he was excellent over the phone and secured a great outcome in short order. I would recommend Redmans Solicitors.

    Posted 1 week ago

    Anonymous

    Chris and Redmans were a great help. Effective and efficient, quick response from my first enquiry and then straightforward and attentive throughout with ultimately a positive outcome. I will use them again and recommend them.

    Posted 1 week ago

    Marie P

    Great service, quick responses, good advice and all in a no nonsense, no jargon manner. Would definitely recommend.

    Posted 1 week ago

    Anonymous

    Rana was amazingly thorough and professional!

    Posted 1 week ago

    Anonymous

    I am extremely happy with the legal advice I was provided with. My case was resolved to the best of my expectations. Thank you very much for your professional help.

    Posted 1 week ago

    Shahzad R

    Chris and his team were excellent. They provided sound advice and consultation that resulted in more cash than was offered. Would definitely recommend.

    Posted 1 week ago

    Sanjay B

    I would like to take this opportunity to thank Mel Chin, for all her support during my settlement process. Where she provided a professional service and was understanding. I would confidently recommend Redmans Solicitors to my friends and family. Thank you and wishing you all a Merry Christmas.

    Posted 4 weeks ago

    Paul O

    Excellent response time and communication during my dealings with Redmans

    Posted 1 month ago

    Gil T

    I don’t normally write reviews, but thought it was time on this occasion. Just wanted to say that I highly recommend Redmans - especially Rana Tandon, who helped me navigate around my employment contract. Rana was meticulous and thorough and all over my needs. Would I use Redmans again ? ..absolutely

    Posted 1 month ago

    Stephanie D

    Very thorough and professional service. I was very nervous about my employment case, as I had never dealt with anything like it before. However, the solicitors who handled my case made sure I understood everything. I was never kept in the dark and Redmans kept me constantly informed about what was going on with my case. I would definitely recommend Redmans Solicitors

    Posted 1 month ago

    Richard S

    Chris and Sacha were great throughout the entire process. Chris was very helpful once the initial discussions with my company began and before we agreed there was a case. Sacha was very responsive, patient and helpful throughout ensuring I felt I had the right information to make the best decision on next steps. A close friend and wife have both used Redmans in the past few years for unfair dismissals and the service continues to be first-class and I would strongly recommend them again. They definitely help reduce the anxiety that comes with uncertainty around new processes and situations. Thank you!

    Posted 1 month ago

    Jianya

    Very nice and patient went through the whole document with me.

    Posted 1 month ago

    Susan L

    Very helpful and led me through the redundancy process.

    Posted 1 month ago

    Jennice

    I was very impressed with the service that I received, and the speed in which it was handled. I would recommend them to a family member

    Posted 1 month ago

    Anonymous

    Good service, but they could have been quicker in their responses to me. I also felt they could have made it clear at one crucial point that what I was proposing - and what I ultimately ended up doing - was counterproductive. (Had they made the rules around TOIL payments clear to me, this wouldn't have happened). Also, the amount I ended up paying was considerably higher than their original estimate. Still, satisfied with the service I received.

    Posted 1 month ago