Legal Update - Reasonable Adjustments

Employment Law – Reasonable Adjustments - Disability Discrimination – Equality Act - Employment Appeals Tribunal

In the case of Foster v Cardiff University UKEAT/0422/12/LA [2013], the appeal to the Employment Appeals Tribunal ("EAT") by the claimant was dismissed.

The Case

The claimant (“F”) is disabled and is currently employed as an academic at Cardiff University business school (“the university”). She suffers from Chronic Fatigue Syndrome. F brought a claim before the Employment Tribunal (“ET”) that the university had breached its duty to make reasonable adjustments as no adjustments for her disability were made for her in relation to the allocation of teaching requirements for the academic year 2010-11. F also brought a claim for harassment against the university. Her claims were rejected on the grounds that the university had made a number of adjustments around the timing and pacing of the F’s work and those adjustments were reasonable.

Appeal to EAT

F appealed to the EAT. F argued that there were numerous errors in the approach taken by the ET:

The ET had erred in not having regard to the effect which anxiety and stress had on the F's disability; and
The ET was wrong to conduct a comparison exercise between F and a person who did not have her disability.

F’s appeal was dismissed:

F’s complaint that the ET had erred in not having any regard to the effect which anxiety and stress had on F’s disability was rejected. The EAT ruled that:
- There was no requirement on the ET to examine the causes of F’s disability. The only requirement was to examine the effects of such disability;
- Anxiety and distress did not constitute F’s disability they were triggers or could exacerbate it.
The approach to conduct a comparison exercise between F and a person who did not have her disability was compatible with the requirements of Council Directive 2000/78/EC (“the Directive”), in particular, Article 5 on the duty to make reasonable accommodation and the ET was correct to follow earlier decisions of the EAT which require a comparison to be done, in the context of making reasonable adjustments between F and a person who does not have the relevant disability.

Factual Background

F commenced work for the university on 1 September 2000. F has been a senior lecturer in the Human Resource Management (HRM) section of the university since August 2007. F is a disabled person within the meaning of section 6(1) of the Equality Act 2010 and in so far as relevant, section 1(1) of the Disability Discrimination Act 1995, the predecessor to the present Act.

F's disability is Chronic Fatigue Syndrome (CFS) is generally manifested as persistent exhaustion. Most of her complaints were to do with academic workloads. Typically, an academic's workload is broadly divided into:

Teaching
- the delivery of lectures
- tutorial or syndicate groups
- supervision of undergraduate and postgraduate students
- marking course work; and
- marking examination papers
Research;
Administration.

F found face-to-face teaching (delivery of lectures and holding tutorial/syndicate groups) the most tiring, but found it easier to cope with supervision.

In distributing the academic workload, in particular teaching, fairly among the academic staff, the university used the "Marriott formula" (a management tool for allocating workloads and is not a key indicator of an academic's performance), which involved allocating to each academic member of staff a set number of points (called "Marriott points") for different teaching activities. The points did not correspond to hours of work done. It accounted for the relative deemed demands of different activities rather than the precise number of hours that they took to complete. In addition, different teaching activities were weighted on the basis that they were notionally more time consuming.

The Marriott formula was not adjusted to incorporate absence through sickness. F was off sick for the better part of the next two years shortly after commencing her employment. F referred her to an occupational health physician and he wrote that she had "most likely suffered with a significant post-viral state which has had a fairly devastating effect on her life", which was "certainly sufficient to warrant protection under the Disability Discrimination Act 1995." He recommended a rehabilitation process and mentioned the importance of substantial adjustments that "should only be for a temporary period and not permanent." F returned to work part-time in August and full-time in October 2002.

In January 2004, F was again referred to occupational health. She was diagnosed with a combination of hypothyroidism, vitamin B12 deficiency, iron deficiency and probable gluten intolerance. It was noted that she had reduced her lecturing load and increased the tutorial and marking elements of her role. It was advised that the F needed very careful planning of her workload and not exposed to sudden bursts in work activity and should avoid short term deadlines. It was also observed that such adjustments needed only to be temporary. It was thought that in the long term F would be able to fulfill ‘…her original job description and eventually would attain normal efficiency and attendance in the workplace…’

F worked for around seven years with a flexible and informal approach regarding workplace adjustments. F wrote a document to record the adjustments which she requires. The ET took the view that the university's reading of the document was more accurate than F's because it could be adapted so long as there was advance consultation with F and ‘…the essential nature of the adjustment – a different balance of duties that facilitated an ability to plan and pace work – remained in place…’

‘…By April 2010 the Claimant began to get anxious about the teaching allocation which was to be devised for the academic year 2010-11. The Respondent's wish was to see an increase in the number of Marriott points allocated generally among academic staff, so that the target should become 350 points (plus or minus 10 per cent). The Claimant had for several years been allocated fewer points than the average. ..’

On 20 August 2010, the proposed teaching allocation was distributed and F was allocated 331.82 Marriott points. Although this represented an increase for F, it was the third lowest allocation in the department and she was one of seven academics (out of a total of 37) to have fewer Marriott points than the target of 350.

By November 2010, the proposed allocation for F had been reduced to 314 Marriott points to account for the F's time off sick this was subsequently reduced to 306.93 points. F’s GP signed her off sick for a period of 2 months in December and this lasted until April 2011 and did not return to work after that point.

On 14 January 2011, F submitted a written grievance which was rejected. Her appeal was delayed pending the outcome of the ET hearing.

The proceedings before the Employment Tribunal

The university did in fact make numerous adjustments around the timing and pacing of the F's work. However, the issue before the ET was whether the university had done enough to comply with its duty of reasonable adjustments. In addition F made claimed disability discrimination and indirect disability discrimination.

Material legislation

The Equality Act 2010 was relevant. 31. Section 6 of the Equality Act defines disability in the following way.

"(1) A person (P) has a disability if –

(a) P has a physical or mental impairment, and

the impairment has a substantial and long-term adverse effect on P's ability to carry out normal-to-day activities."

Section 3 deals with direct discrimination and provides in subsection (1) that a person (A) discriminates against another (B) if, because of a protected characteristic, A treats B less favourably than A treats or would treat others. Disability is a protected characteristic.

‘…In addition section 15 deals specifically with discrimination arising from disability, which does not require a comparison to be made with someone who is not disabled. It provides that a person discriminates against a disabled person if A treats B unfavourably because of something arising in consequence of B's disability and A cannot show that the treatment is a proportionate means of achieving a legitimate aim…’

‘…Section 20 creates a duty to make reasonable adjustments. Section 21(2) makes it clear that A discriminates against a disabled person if A fails to comply with the duty to make reasonable adjustments in relation to that person…’

The duty to make reasonable adjustments, as set out in section 20, comprises three requirements:

‘...The first, which is the only one relevant to the present case, is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage…’

Section 40 of the Equality Act 2010 prohibits harassment in the context of employment.

F's Ground 1: the meaning of disability

F submitted that:

the ET erred in law in its approach to what her disability in this case was as it failed to refer to any of the medical evidence as to the wider health problems from
the ETs approach to the fact that F suffered from anxiety and stress, which (on the medical evidence) had the effect of triggering or exacerbating her CFS41 was misdirected in law.

The EAT rejected that the ET erred in law as alleged. It was held that ‘…The Tribunal correctly directed itself that, in appropriate cases, anxiety and stress do properly need to be taken into account, where they go to the nature of the disability itself, for example if it is an anxiety disorder. There was no suggestion of that in the present case. It was common ground that the Claimant's disability was CFS. The relevance of anxiety and stress was that they could act as a trigger for the CFS, in other words they went to its cause. Again the Tribunal was well aware of that, as the passage we have quoted from paragraph 64 itself makes clear. However, as Mr Sheldon submitted, the law does not require a tribunal to investigate the causes of a disability, only its effects. ..’

‘…In our view, the authority of Gardner supports the Respondent's submissions before us, not those of the Claimant. What this Tribunal was emphasising in that decision was that it will often be important to spell out clearly what the effects of a condition are rather than simply describing it by a particular label, such as a "knee condition." In the present case the Employment Tribunal was well aware of the effects of CFS on the Claimant, in particular the difficulties it caused for her ability to cope with teaching. However, that is far from saying that the Tribunal was also called upon as a matter of law to investigate the causes of the Claimant's CFS. ..’

‘…The Respondent's submissions also derive support from relevant guidance on the meaning of disability which has been issued by the Equality and Human Rights Commission. Paragraph A6 of that guidance, so far as material, states that a disability can arise from a wide range of impairments, which can include impairments with fluctuating or recurring effects such as Chronic Fatigue Syndrome, which is expressly mentioned. Paragraph A8 of the guidance states that:

"It is not necessary to consider how impairment is caused, even if the cause is a consequence of a condition which is excluded. … What it is important to consider is the effect of impairment not its cause – provided that it is not an excluded condition."

Later in the same paragraph the guidance states that:

"It is the effects of these impairments that need to be considered, rather than the underlying conditions themselves."…’

The EAT ruled that the ET's judgment was consistent with both the guidance and earlier authority and was correct in law on this point. Accordingly, it rejected H's Ground 1.

The Claimant's Ground 6: the need for a comparator

F submitted that the ET erred in law as it considered that, in a reasonable adjustments case, it was required to do a comparison exercise between her and a comparator (whether actual or hypothetical) who did not have the relevant disability.

The university’s counsel cited the recent decision in Nottingham City Transport Ltd v Harvey [2013] Eq LR 4 as to the meaning of the term "provision, criterion or practice". At paragraph 18 of the judgment Langstaff P said:

"…although those words are to be construed liberally, bearing in mind that the purpose of the statute is to eliminate discrimination against those who suffer from a disability, absent provision or criterion there still has to be something that can qualify as a practice. 'Practice' has something of the element of repetition about it. It is, if it relates to a procedure, something that is applicable to others than the person suffering the disability. Indeed, if that were not the case, it would be difficult to see where the disadvantage comes in, because disadvantage has to be by reference to a comparator, and the comparator must be someone to whom in either reality or in theory the alleged practice would also apply. …"

‘…In words that are reminiscent of what the Employment Tribunal said in the present case, Langstaff P continued, at paragraph 19:

"…there was no evidence here that the employer made a practice of holding disciplinary hearings in a way that eliminated consideration of mitigation or in a way in which there was no reasonable investigation … it seems to us that there was no sufficient evidence to show that the application of the respondent's disciplinary process in the case of the claimant was a provision, criterion or practice. It was something that represented unfair treatment of him, as the finding by the Tribunal in respect of unfair dismissal recognises, but not all unfair treatment involves a failure to adjust that which is a provision, criterion or practice."…’

In Environment Agency v Rowan [2008] ICR 218, at paragraph 27. Langstaff J added that:

"… For the purpose of the comparison the Tribunal must be able to identify the persons by reference to whom the provision, criterion or practice, either in its presence or its application, is said to place the disabled person concerned at a substantial disadvantage. Disadvantage is necessarily relative."

The EAT held that:

‘…In our judgment, there is no incompatibility between domestic legislation as it has been interpreted by this Tribunal to date and the requirements of the Directive, in particular Article 5. As Mr Sheldon pointed out, the duty to make "reasonable accommodation" in Article 5 is expressly laid down in order to give effect to the principle of equal treatment (see the first sentence of Article 5). In order to understand the meaning of that principle, one has to go back to Article 2. It is clear from the language of Article 2 that both the concept of direct discrimination and the concept of indirect discrimination require a comparison exercise to be performed. What is particularly relevant in this context is the concept of indirect discrimination. This is where an apparently neutral provision, criterion or practice has the effect of placing a person with a particular disability at a particular disadvantage in comparison with persons who do not have that disability.

Furthermore, the last part of Article 2(b)(ii) expressly cross-refers to the duty of reasonable accommodation in Article 5 and refers to its purpose as being to eliminate disadvantage entailed by "such provision, criterion or practice." This is clearly a reference back to a relevant provision, criterion or practice as referred to earlier in Article 2(b), where the phrase is used in the context of a comparison with persons who do not have the relevant disability …In our view, it is clear from a reading of the Directive as a whole, and having regard to its purpose, that the duty to make reasonable accommodation arises in order to meet the problem that an apparently neutral provision, criterion or practice may be applied to all persons and yet places a person with a relevant disability at a particular disadvantage. That necessarily involves an exercise in comparison between two persons: the person with that disability and another person (not necessarily an actual person since the comparator can be a hypothetical one) who does not have the relevant disability. Domestic legislation, as currently interpreted in the authorities to date, also requires there to be not merely a substantial disadvantage but a substantial disadvantage in comparison with a person who does not have the relevant disability. In our judgment, that is consistent with the requirements of the Directive and there is nothing incompatible between domestic legislation, so interpreted, and the Directive…’

F’s Ground 6 was rejected.

Conclusion

F’s appeal was dismissed.

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© RT COOPERS, 2013. 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.