Reasonable adjustments: no need to show adjustment will work


4 mins

Posted on 17 Aug 2016

An employer had failed to make reasonable adjustments where there was a real chance, but no guarantee, that the adjustment would work.

Speedread

An employment tribunal had been correct to find that an employer had failed to make reasonable adjustments where there was a real chance, but no guarantee, that had the adjustments been made the employee would not have been dismissed. It is not necessary for a disabled employee to show that a proposed adjustment will work. It is sufficient to show that there is a chance that it will do so. Whether an adjustment is a reasonable one for an employer to make is a question of judgment and evaluation for the tribunal, taking into account a range of factors, including but not limited to chances of success.

Facts

In South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley, Mrs Billingsley worked as a data input clerk. She suffers from dyspraxia, a disability, which made her more prone to errors. The Trust commissioned a report into her performance which recommended that the Trust provide some technical aids and 50 hours of specialist tuition. These recommendations were not implemented. The Trust began monitoring her error rate and at informal performance meetings Mrs Billingsley asked for the specialist training to begin. Eventually (nearly three years after the initial recommendation) the technical aids and 20 hours of specialist training were provided. Her performance improved markedly. However, when her supervisor went on maternity leave her error rate rose due, she claimed, to the change in supervisor. 

The Trust began a formal review procedure at the end of which it dismissed her on grounds of capability. 

She claimed disability discrimination. 

The employment tribunal ruled that the employer had failed to make two reasonable adjustments: providing technical aids in good time (and in any event well before the monitoring of her performance began) and providing the full recommended number of hours of specialist training. It had done too little too late. There was a real chance that if these adjustment had been made, she would not have been dismissed. 

The employer appealed, arguing that the tribunal should not have considered whether there was a real chance that these adjustments would have avoided dismissal. An adjustment is only a reasonable one if it will work. If there is only a chance that it will work, then it is not a reasonable one which the employer has to make. 

Decision 

The Employment Appeal Tribunal disagreed with the employer’s argument and upheld the employment tribunal’s decision. It is not necessary for an employee to show that the adjustment they propose would be completely effective to avoid the disadvantage, it is sufficient to show that there is a chance that it will do so. Whether an adjustment is reasonable is a question of judgment and evaluation for the tribunal, taking into account a range of factors, including but not limited to chances of success. 

If a measure proposed by an employee stands a very small chance of avoiding the unfavourable treatment but was beyond the financial capacity of the employer, a tribunal would be entitled to conclude that it was not a reasonable adjustment. However, in the case of a large organisation, where a proposed adjustment could be implemented without imposing an unreasonable administrative or financial burden on the employer then the obligation to take it may arise even if the chance of avoiding the unfavourable treatment was very far from a certainty. 

Implications

If there is a chance that a proposed adjustment will work, an employer should consider making it. In addition to the prospects of success, a tribunal considering whether an adjustment is a reasonable one for an employer to make will take into account the size of the employer and its resources, the practicability of the proposed step and the cost of making the adjustment. The EHRC Code of Practice makes it clear that it may still be reasonable to make an adjustment, even if success is not guaranteed. The uncertainty of success is simply one of the factors to weigh in the balance.

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