Removal of a disability related adjustment amounts to a failure to make an adjustment

An employer is obligated to make disability related reasonable adjustments in connection to work if an arrangement of an employer places the disabled employer at a substantial disadvantage. This is commonly referred to as the duty to make reasonable adjustments and is set out in section 20 of the Equality Act 2010.

In the context of sickness proceedings this statutory duty is perhaps the most commonly referenced by trade union representatives when assisting members in sickness proceedings.  Where, as many do, the employer operates a ‘trigger point’ scheme at which employees are subject to formal disciplinary proceedings for poor performance if their absence breaches an universally applied figure (for example 10 days absence in a year, or five separate occasions) then that ‘trigger point’ may itself be an arrangement that places a disabled person at a substantial disadvantage. The reason being that the disability may mean the person is more likely to be absent than elsewhere.

This is a common scenario. In 2015 PCS successfully appealed a EAT judgement that suggested an employer is not obligated to consider adjusting/increasing a trigger point when this impacts detrimentally on a disabled worker’s susceptibility to having disciplinary actions taken against them on attendance grounds (Griffiths v DWP). It is no incontrovertible that a trigger point is a arrangement that is apt for adjustment (or to use the statutory language, a provision, criterion or practice). Whether the law requires an adjustment (assuming the statutory building blocks of the section are met such as disability and substantial impairment)  is determined whether it is ‘reasonable in all the circumstances.’

Although it is not a requirement for a request for an adjustment to be made by a worker for an employer to be under a duty to make one (Kuranchie v Home Office, discussed here)  the way such a case will normally play out is the worker identifies an adjustment that they think will help and the employer will either ignore the request or simply refuse to do so. In either case the employer has potentially breached the duty to make adjustments (assuming the worker can prove the statutory elements have been met).

The recent case of Northumberland Tyne & Wear NHS Foundation Trust v Ward [2019] UKEAT 0249_18_1810 offers a slightly different type of scenario. The hospital did operate a ‘trigger point’ system the claimant who was disabled by reason of a chronic fatigue syndrome was disadvantaged by the generally applied trigger points. In recognition of this the hospital did make adjustments to how the policy was applied to the claimant, and these adjustments appeared to be successful. However, a subsequent manager (apparently under influence of HR advice based on the EAT’s decision in Griffiths which was to be overturned) reverted the claimant’s trigger points to the same as all other employees (which had recently been changed).

This decision to remove a previously successful adjustment was found itself to be a decision not to make an adjustment and so the complaint of a failure to make disability related adjustments was successful. The decision that this was unlawful is not surprising but the decision in Ward is a helpful one in making clear that a decision to remove an adjustment, just like a more common decision to refuse to make an adjustment, is a decision that can be challenged as the point at which an employer fails to make an adjustment.

More broadly however the decision also highlights the difficulties that can arise when an employer makes a general change (as it did in the case when it reduces the sickness trigger points for all employees). It is unlikely to be reasonable to reduce the benefit that a disabled worker was receiving to bring this in line with other employees working practices (or even make a pro rata reduction) and that existing adjustments should remain in place and any new policies should continue to reflect this ongoing protection. The rationale being if an adjustment was reasonable and successful it will take some particularly compelling evidence to enable an employer to argue that this is now no longer reasonable in all the circumstances.