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Issue 82 (September 2003)

Contents

Roll ups not always bad for your health
Pregnancy protection
Reasonable adjustments include assessments
Disorientating decision
Important NMW cases
Pre-operative protection  

Reasonable adjustments include assessments

Mid Staffordshire General Hospitals NHS Trust v Cambridge [2003] IRLR 567

The Disability Discrimination Act continues to give rise to much case law. There are three forms of disability discrimination - less favourable treatment, the failure to make reasonable adjustments, and victimisation. As the case law develops it becomes clear that the most important of these rights is the duty of employers to make reasonable adjustments when a disabled person is placed at a substantial disadvantage in the workplace in comparison to those who are not disabled.

The case of Mid Staffordshire General Hospitals NHS Trust v Cambridge is an extremely important decision of the EAT which sets out the wide scope of the reasonable adjustment duty, and also the importance of the less favourable treatment provisions of the DDA. Mrs Cambridge was supported by her trade union, UNISON.

Mrs Cambridge had been signed off sick for five months and was then certified fit to return for two hours per day. After four months, the occupational health doctor advised that the number of hours could perhaps be increased to three, and that a full recovery could take a further twelve months. At that point Mrs Cambridge's manager decided that if she could not return to full time work within a reasonable time, she would be dismissed. In due course a disciplinary procedure was followed, ultimately resulting in Mrs Cambridge's dismissal.

Throughout the period, various meetings were held with Mrs Cambridge but at no time did the managers consider the DDA and what, if any, obligations they had towards Mrs Cambridge under the DDA. At the time the decision to dismiss was made, Mrs Cambridge was entitled to another six weeks full pay and six months half pay, but by the time of the actual dismissal, this had been exhausted. The Tribunal found that Mrs Cambridge had been subjected to less favourable treatment and also that there had been a breach of the employer's duty to make reasonable adjustments in her case. The less favourable treatment was being told of possible redeployment in advance of considering reasonable adjustments to her current working arrangements; implicit and explicit threats of disciplinary action at various meetings before the instigation of disciplinary proceedings; and invoking the disciplinary procedure itself. All these findings were upheld by the EAT on appeal.

Even more significant is what the EAT has said about the reasonable adjustment duty (the Section 6(1) duty). The EAT has ruled that the Employment Tribunal was correct to hold that the employer had failed to comply with the s.6(1) duty as they did not carry out an assessment to enable them to decide what steps would be reasonable to prevent Mrs Cambridge from being at a disadvantage. A proper assessment of what is required to eliminate the disabled person's disadvantage is a necessary part of the duty imposed by s.6(1), since that duty cannot be complied with unless the employer makes a proper assessment of what needs to be done. The making of the assessment cannot be separated from the s.6(1) duty, because it is a necessary precondition of the fulfilment of that duty and therefore a part of it.

Correct approach

The EAT went on to say that the Tribunal's approach to compensation for the employer's breach had also been correct. The Tribunal had assessed the loss on the basis of what the chances would have been of establishing that steps could reasonably have been taken so that Mrs Cambridge could have remained in her post, or redeployed to a suitable alternative one.

This judgment emphasises the importance of employers conducting a full assessment into what can be done to reduce a disabled person's disadvantage in the workplace - both the physical features and the arrangements - and employers run the risk of breaching the s.6(1) duty if they do not do so. It is also a good reminder that unjustified less favourable treatment can often relate to matters that precede the actual dismissal.