Reasonable Adjustments

February 3rd, 2012 by Richard Leiper

In Roberts v North West Ambulance Service (UKEAT/0085/11) the EAT considered the language of s 4A of the DDA and ruled that it is not necessary for a provision, criterion or practice (PCP) to have been applied to the claimant in order that a duty to make reasonable adjustments may arise: the questions are simply (1) whether the employer applied a PCP and, if so, (2) whether that PCP placed the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled. It is not a requirement that the substantial disadvantage arises from the application of the PCP to the disabled person.

The facts of the case help to explain this. The claimant was an emergency medical dispatcher. The dispatchers worked various, overlapping shift patterns and as a result the employer asked them to hot-desk. The claimant suffered from social anxiety disorder and after a period of work indicated that his condition was exacerbated by his sitting in the middle of the room. He therefore asked to be placed by the wall and next to a window. His employer agreed and the arrangement worked well, save that on three separate occasions the claimant arrived at work and had to wait whilst others were moved from his chosen desk. After the third occasion he resigned, claiming a breach of the s 4A duty and constructive dismissal.

The Employment Tribunal decided that “the alleged policy of hot-desking” was not applied to the claimant, since he was not required to sit in any place other than his preferred seat. It added that, in any event, “the respondent acted reasonably in the steps it took to accommodate the claimant’s wish to sit in his preferred location”.

The EAT identified two errors of law.

First, the ET required that the PCP be applied to the claimant and that this application led to the substantial disadvantage. The EAT said that this was an unnecessary requirement: all that the statute requires is that a PCP be applied by the employer and that that PCP should place the employee at a substantial disadvantage. Hot-desking was clearly a PCP. It was not applied to the claimant, but the fact that the PCP existed could at least arguably be said to be the cause of a substantial disadvantage to the claimant: “he continued to be affected by ‘hot desking’ because other people who were required to hot desk were still sitting in and intending to use his preferred seat when he arrived for work” (¬∂ 33).

Secondly, the ET was wrong to ask whether the respondent had acted reasonably: the effect of s 18B(1) is that if it was a reasonable adjustment to ensure that the seat was free for the claimant, then the respondent was bound to make that adjustment, not merely to take reasonable steps to do so.

The EAT remitted the case to the same ET.

Another appeal on reasonable adjustments, Burke v The College of Law [2012] EWCA Civ 27, was rejected on the basis that the E T had made adequate findings of fact. This meant that the Court of Appeal did not address a rather more interesting question. Mr Burke suffers from MS. He wanted to sit the LPC exams and asked for additional time to sit the various papers. The College of Law did allow him more time, though he contended not enough. The ET found that the requirement that the exams be sat under time pressure was itself a competence which was tested, namely the ability to work under a time constraint. Paul Nicholls and Christopher Knight acted for Mr Burke (instructed through the Bar Pro Bono Unit). Permission to appeal had been granted to consider whether there was a distinction to be drawn between the competence – the ability to work under time pressure – and the mode of assessment. Mr Burke’s case was that, even on the footing that the ability to work under time pressure was a competence, nonetheless the respondents were under an obligation to make reasonable adjustments to the requirement that the exam be completed in three hours. This was accepted at the permission stage to raise an issue of general application. However, the¬†point remains undecided.