Disability Awareness Day takes place this year on the 12th of September. As part of our focus on this day, we will be looking at recent cases and issues relating to disability discrimination.

In this second week of our focus, we are looking at indirect discrimination under the Equality Act 2010.

Indirect discrimination in employment occurs when an employer applies a provision, criterion or practice (PCP) to an employee which puts that employee at a particular disadvantage because of their protected characteristic. Indirect discrimination will be found to have taken place if the employer cannot justify the PCP by showing it to be a 'proportionate means of achieving a legitimate aim.'

The concept of a PCP is notoriously wide and no definition is given within the Equality Act 2010. Therefore, it is up to the Employment Tribunal to decide whether an employer's conduct does in fact merit indirect discrimination by way of the application of a PCP. 

In the recent case of Martin v City and County of Swansea [2021] UKEAT 000460_20_2907, the Employment Appeal Tribunal (EAT) found that the Employment Tribunal (ET) had erred in law by concluding that the PCP asserted by the Claimant in a reasonable adjustments claim was only the terms of a Management of Absence Policy and not the subsequent application of that policy 

In Martin, the Claimant began working as an Equality Engagement Officer with the Respondent in January 2014. Her post was subsequently made redundant and she was redeployed into the Housing Department in April 2015. The Claimant suffered from stress related ill health and had a number of long periods of sickness absence. During that period, the Claimant was involved in further redeployments within the organisation to try and alleviate her stress related ill health. In October 2016, she began working as a Mentor in the European-funded Workways + Project. In January 2017, the Claimant was once again signed off from work and as a result of her salary being paid from the project budget, her role was unable to be covered by someone else. The Claimant did not return from this period of absence. 

An Occupation Health report found that the Claimant had a chronic illness and experienced work-related stress due to her working environment. The Respondent once again placed the Claimant on the redeployment list, however, during a final absence review meeting, the Claimant was dismissed from her role. The Claimant appealed the decision but her appeal was dismissed with the appeal manager finding that the Claimant has been adequately supported in accordance with the Respondent's Management of Absence Policy.

The Claimant duly raised a claim for unfair dismissal in the ET, alleging disability discrimination and failure to make reasonable adjustments under the Equality Act 2010. The Claimant argued that the Respondent had applied a PCP in the form of an 'attendance management practice and/or policy that dismissed employees who are not capable of their role.'  Subsequently, the Claimant noted the PCP as: 

"Requirement for the Claimant to be fully fit for her substantive role – attendance management policy"

The ambiguity of the Claimant's PCP could have been read as suggesting that the PCP was the Absence Management Policy itself – and not the application of the policy to the particular circumstances of the Claimant's dismissal. The Respondent claimed the PCP asserted by the Claimant was the policy itself, which it argued, could not place the Claimant at a disadvantage. 

The ET agreed with the Respondent's argument and found that the PCP asserted by the Claimant was the policy itself and that the policy did not place her at a disadvantage in comparison with non-disabled employees. It went on to note that the policy allowed the Respondent a level of discretion in relation to any adjustments that could be made for a disabled employee. The ET stated: 

"the application of the Management of Absence Policy, as a PCP, does not place the Claimant at a substantial disadvantage in comparison with non-disabled persons. As such no duty to make adjustments in respect of its application arises and the complaints of failure to make adjustments are not well founded and are dismissed."

The Claimant appealed and although the EAT did ultimately dismiss the appeal, it found that the ET had erred in law by concluding that the PCP asserted by the Claimant was only the terms of a Management of Absence Policy. 

The EAT went on to note that it is clear that both the PCP and its application must be looked at. In this case, the Respondent's policy included a discretion to move the Claimant to an alternative role. However, the EAT found that the mere existence of such a discretion did not remove potential disadvantage to a disabled person - the employer also has to be able to show that it considered and/or used that discretion fairly and appropriately. Therefore, the EAT looked at what actions the Respondent had taken to avoid the Claimant being disadvantaged. In this case, it found that the Respondent had in fact made all adjustments that were reasonable and the appeal was duly dismissed.

What can we learn from the EAT's findings? 

The EAT's findings emphasise the importance of identifying the correct PCP in a reasonable adjustments claim. It is important not only to identify the correct PCP, but to determine whether the application of that PCP places a disabled employee at an unfair disadvantage. It is not sufficient to merely include a discretion to make reasonable adjustments - it is absolutely necessary to act upon that discretion to ensure no disadvantage takes place.  Considerations must be given to what adjustments can be carried out by an employer to ensure that the disabled employee is not at a disadvantage.  Even where an employer has a "fair" capability policy, they should be cautious when assessing the way in which they apply their policies to ensure that any disadvantage to disabled employees can be mitigated or avoided.

If you need any support in drafting, updating or implementing an Absence Management Policy, or in assessing reasonable adjustments, please contact:

Lynne Taplin, Associate, at Lynne.Taplin@addleshawgoddard.com

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Kelly Brown

Kelly Brown

Legal Director, Employment
Edinburgh, UK

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