Disability Discrimination

Employment Law – Disability Discrimination – Employer Making Reasonable Adjustments

 

The recent case of Wilson v Secretary of State for Work and Pensions and Others [2010] involved a determination relating to a claim of disability discrimination. The claimant in this case, W, was employed in an administrative role within the Newcastle Employment Action Team (“NEAT”). NEAT was part of Job Centre Plus, which was under the control of the first respondent’s department.

W worked in the back office due to the fact that she suffered from a disability, which was recognised under the Disability Discrimination Act 1995 (“the 1995 Act”). The NEAT offices were close to W's home.

It came to light that in March 2006, the offices at which W was employed were scheduled to close. There was speculation as to whether (and where) the NEAT team could be redeployed.

During this time W submitted a request to be allowed to work from home due to her disability, however her request was denied. Even so, several other choices were made available to W, however she elected to reject each of them.

Then, in November 2006, W was put on fully paid leave to allow an investigation to take place into the best way in which she could return to work.

This special leave continued for a period of six months until the end of May 2007. No decision was reached as to where, and when, W could return to work.

Subsequently, in January 2009, W was dismissed for lack of capability due to her disability absence. W duly commenced proceedings in the employment tribunal. She claimed that she had been discriminated against by reason of her disability.

The tribunal held as follows:

“(1) That in seeking to redeploy W, the employer was applying a provision, criterion or practice which placed W at a substantial disadvantage in comparison with persons who were not disabled.”

“(2) That the employer failed to take such steps as were reasonable, in all the circumstances of the case, for it to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”

”(3) That the failure to make reasonable adjustments, as required by s.4A of the 1995 Act, as supplemented by s.18B of the 1995 Act was such that W had been discriminated against on grounds of her disability.”

The employer appealed against the above finding.

The employer submitted six grounds in making its appeal. The employer's principal ground was that the tribunal had acted erroneously in that it failed to consider s.18B of the 1995 Act when it came to its conclusions.

The appeal was allowed.

It was held that the employer's principal ground of appeal had merit. W had refused to contemplate any option except working from home subsequent to the closure of the offices in which NEAT operated.

Furthermore, there were no home working vacancies that existed at the time or that could reasonably be created by the employer.

In addition to the above, it was held that there was evidence that it was not practicable for the employer to create a home working role. Accordingly it was held that the tribunal's judgment was indeed erroneous in that:

“(1) It had failed to have regard to the extent to which it would be practicable for W to take the steps suggested as amounting to a reasonable adjustment, namely home working.

“(2) The tribunal had not made a clear finding with regard to the feasibility of home working.”

It was further held that the tribunal had not acted correctly in reaching its conclusion that the employer had failed to make a reasonable adjustment in respect of W’s position.

Therefore, considering the circumstances, the only decision the tribunal could have reached was that firstly, the adjustments that were offered initially by the employer were indeed reasonable adjustments and, secondly, that it would not have been deemed to be a reasonable adjustment for W to be allowed to work from home.

This resulted in the decision being substituted.

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© RT COOPERS, 2010. This Briefing Note does not provide a comprehensive or complete statement of the law relating to the issues discussed nor does it constitute legal advice. It is intended only to highlight general issues. Specialist legal advice should always be sought in relation to particular circumstances.