Disability Discrimination and reasonable adjustments

Andrew Masters

Partner & Head of Employment

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January 19, 2017

Categories Employment Law Updates

Perratt v The City of Cardiff Council

Many employers struggle with the duty to make reasonable adjustments for disabled employees. When is the duty triggered? When will an adjustment be ‘reasonable’? When is an employer entitled to turn down an employee request for a particular change to the way they work?

It is often difficult to provide definitive legal answers to these questions, as it is ultimately a matter for an employment tribunal to decide whether a potential reasonable adjustment is reasonable on the facts of a particular case. However, the Employment Appeal Tribunal [EAT] recently provided some useful guidance in Perratt v The City of Cardiff Council.

Mrs. Perratt had a number of disabilities (including Asperger’s syndrome) that affected her memory.  Her role was broadened to encompass new duties, which caused her significant difficulty. She also had mobility issues.

After a period of absence, she was dismissed on capability grounds as the decision-maker did not think she would be fit to work again in her role in the foreseeable future.

She claimed that she had been unfairly dismissed and discriminated against on the grounds that her employer had failed to make reasonable adjustments to enable her to remain in work. For example, she argued that she should have been allowed to record meetings to help her with her memory difficulties and been given help from a colleague to collect her printing (rather than being required to walk to a central printer). She also argued that her employer should have redeployed her to a different role rather than dismissing her.

The employment tribunal rejected her reasonable adjustment claims on the grounds that a non-disabled person would have been treated in the same way. For example, another non-disabled employee with memory difficulties would experience the same problems recalling what had occurred in meetings.

The EAT said that this approach was incorrect. The duty to make an adjustment can apply to any ‘provision criterion or practice’ (‘PCP’) which “bites harder” on the disabled employee than other members of staff. It does not matter whether this PCP applies equally to all employees. The key question is whether the disabled employee has greater difficulty in complying.

Mrs. Perratt was less able to remember what was said in meetings when compared with most other employees, and less able to walk to collect her printing. Therefore, both the changes she had requested could potentially be reasonable adjustments.

When thinking about reasonable adjustments, an employment tribunal will look carefully at practicalities. An employer must consider on each occasion whether a particular step is an adjustment that can reasonably be made for a particular person, in a particular role, with a particular disability.

For further information contact Andrew Masters on 01227 763939 or email asm@furleypage.co.uk