Although often forgotten when in the midst of a situation, the starting point for any complaint about indirect discrimination or failure to make reasonable adjustments is is what is the Provision, Criterion, or Practice (PCP) that is placing (or would place) the worker at a disadvantage. If you do not tie that down first then you will very likely find you run into difficulties later on – this is especially the case if an issue is likely to escalate to the employment tribunal stage where a failure to specify or, more often, imprecisely specify a PCP could prove fatal for a case that would otherwise be winnable.
Put that way the forgoing may sound like common sense, but the reality is identifying the correct PCP can be very difficult and although an Employment Tribunal is likely to give latitude to a claimant representing themselves representing on a non-legally qualified basis it is still an area where claims can fail. If not thought through at the outset a claimant is always going to be playing catch-up.
If all this sounds very daunting it is reassuring (if that’s the word) to see that even employment tribunal judges can find themselves all at sea when it comes to turning their mind to the issue of PCPS, as the recent case of Gillespie v St Thomas’ NHS Foundation Trust (2022) shows. At the Employment Tribunal hearing the claimant advanced claims of constructive unfair dismissal, sexual harassment, and a failure to make reasonable adjustments. The claimant succeeded in the unfair dismissal cause of action but failed in the remaining two. The claimant appealed the reasonable adjustment dismissal to the EAT. The reasonable adjustment claim was based on a PCP her being fit and well enough to to perform the full duties of a staff nurse – the claim was therefore, as most reasonable adjustment claims in the ET are, a claim under section 20(3) of the Equality Act 2010. The factual background to the claim is that an employee was absent from work because of sickness issues but that her health deteriorated and she was diagnosed with a serious medical condition. That condition meant she was unable to perform the full range of duties her contract required and medical advice recommended an alteration of the role to one that did not require regular mobility or manual lifting. One adjustment suggested by the claimant in the proceedings was that the employer could have invoked its redeployment policy to identify suitable alternative posts (which would have avoided resignation/the constructive dismissal).
Misdirected attention
In its scant consideration of the reasonable adjustment case the employment tribunal itself, as many a claimant has before them got themselves in something of a muddle about what is needed to satisfy the requirement that a PCP has been applied to an employee. In its decision the ET explained:
The PCP proposed by the Claimant would apply to any employee. The redeployment policy would apply to, among others, disabled employees. The ordinary practice in cases such as that of the Claimant would have been to apply the redeployment policy. In this the Respondent failed for the reasons set out earlier. There was no discernible practice of not so doing which adversely affected disabled employees.
Paragraph 126 of ET Judgment.
The reasoning of the ET therefore was that the redeployment policy would apply to everyone (although did not in the case because of an error of the employer) and would not place disabled persons at any disadvantage, and therefore, the duty to make adjustments did not apply (because there was not a PCP that placed the claimant at a disadvantage compared to a non disabled comparator).
The difficulty with that argument, as the EAT decided, was that the ET entirely missed the PCP that was alleged. The pleaded PCP was not about the redeployment policy at all (the redeployment policy was instead a ‘reasonable step’) the PCP was whether the requirement to perform the full range of staff nurse duties (the PCP) placed the claimant at a disadvantage compared to someone not disabled. The ET did not analyse that question at all but a different one that was not pleaded. The EAT explained this decision in the following way:
I have concluded that the only realistic reading of paragraph 126 [of the ET Judgment] is that the employment tribunal lost sight of the PCP relied upon by the claimant. The sentence “The PCP proposed by the Claimant would apply to any employee” is essentially neutral, although it is implicit that general application goes against there being an appropriate PCP, whereas it is generally the very nature of a PCP. The second and following sentences make it clear that the employment tribunal considered that the PCP relied upon related to the application of the redeployment policy. The employment tribunal concluded that because there was no general practice of applying the redeployment policy as it had been applied to the claimant, presumably by failing to contact her about redeployment, this meant that no relevant PCP had been applied to the claimant at all. The analysis was not of the PCP identified by the claimant, which was the asserted requirement to be fit to undertake the duties of her role as a staff nurse.
Paragraph 14 of EAT Judgment
The consequence of this fundamental error is that the “employment tribunal failed to determine the reasonable adjustments claim that was before it.” No doubt this is very frustrating for the claimant but it is a reminder that even employment tribunals who deal with such matters regularly can easily find themselves approaching PCP issues in the wrong way. The error here, of jumping ahead to the solution and reasonable steps side of the conclusion before identifying the cause of the issue is one that is easy to make.
Boilerplate PCPs
Although not central to the decision of the EAT the judgment also includes some interesting comments on what may be colloquially called ‘boilerplate’ PCPs:
There are two main ways in which such cases have been analysed in terms of the appropriate PCP. Firstly, a PCP of being fit to undertake the duties of the job may be identified: Archibald v Fife Council [2004] ICR 954. Secondly, a PCP may be identified that results from the application of an ill health management process: Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, [2017] ICR 160, in which Elias LJ described the PCP as “the employee must maintain a certain level of attendance at work in order not to be subject to the risk of disciplinary sanctions”. I do not accept that these are just two different ways of asserting the same PCP – they are different PCPs – although they may often both be applied in the case of an employee whose disability prevents them from fulfilling the duties of their role and may, as a result, then be absent from work … The PCPs might conveniently be referred to as the Archibald and Griffiths PCPs.
Paragraph 11 of EAT Judgment.
Identifying the correct PCP is difficult and, that being the case I think the “Archibald” and “Griffiths” PCPs, as set out above provide a valuable starting point for any formulation of a reasonable adjustment claim under section 20(3) of the Equality Act.
The Griffiths ‘boilerplate’ is I think going to be relevant in many cases that engage a worker’s disability related sickness absence. Of particular note is that the PCP is not framed as a requirement that a worker receives a disciplinary warning but that they are at greater risk of doing so. Sometimes it will not catch the real issue that disadvantages a worker but even then is a useful supplementary PCP. For example, disabled worker absent because of a bullying manager that aggravates their disability may be able to argue the PCP of being managed by that manager upon return makes it more difficult to return to work but, even so, the Griffiths PCP would still be applicable in the alternative.
Much the same general applicability applies to the Archibald PCP. If disability is impeding performance in certain areas of the expected role then the Archibald PCP is likely to apply, although I think expanding this to include not only fitness but also ability may be advisable.
I am not suggesting that a worker or trade union rep drafting or advancing a reasonable adjustment claim should include these boilerplates automatically or exclusively, every case is specific to the facts but when coming to the difficult task of formulating PCPs in a reasonable adjustment case then these are really helpful starting points and/or alternative PCPs that can be advanced if relevant (remembering, of course, that sections 20(4) and 20(5) of the 2010 Act provides alternatives routes which do not require a PCP to be identified at all).
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