Where an employee is placed at a substantial disadvantage because of a criterion, provision or practice of the employer, that employer has a duty to make reasonable adjustments. However, employers are not required to make adjustments which are unreasonable or would not work.
This week we look at the recent case of South Staffordshire and Shropshire Healthcare NHS Foundation Trust v Billingsley which discussed whether it was reasonable to require an employer to make an adjustment when it was not clear that the proposed adjustment would be successful.
Ms Billingsley was employed a data entry clerk for the Trust. She was dyspraxic, a disability which can make it difficult to process information. As a result, she was slower at entering data than her colleagues and significantly more prone to making errors. The data needed to be recorded accurately as it generated the dates for children’s immunisation and developmental check-ups.
The Trust commissioned a study into the claimant’s performance which recommended the Trust to provide some technical aids and 50 hours of specialist tuition. A subsequent access to work assessment suggested 40 hours of specialist tutoring was required. Although Ms Billingsley kept asking for the recommendations to be implemented, the Trust refused on the basis that it did not have any dyspraxia specialists within its organisation.
The Trust began a performance management process and eventually (five months into the process) provided Ms Billingsley with the recommended technical aids and 20 hours of tuition. Her performance markedly improved but was still worse than her non-disabled colleagues.
After a year of monitoring, the Trust advised her that no errors would be permitted going forward and, following a further extensive assessment period, the Trust decided to dismiss her with notice on capability grounds.
Ms Billingsley’s appeal was unsuccessful and she brought a claim for unfair dismissal and disability discrimination on the grounds that either the Trust should have provided the recommended 40-50 hours’ tuition, or they should have lowered their accuracy requirements on the basis that she was disabled.
The Trust argued that providing a further 20-30 hours of tuition was unlikely to have sufficiently improved her performance.
The Employment Tribunal held that the Trust had failed to make reasonable adjustments as it had “done too little too late” – failing to provide the aids in good time and before the assessment process started, and failing to provide the full 40-50 hours’ tuition recommended by the reports.
The Tribunal stated that, when weighing up the reasonableness of a proposed adjustment, a claimant did not need to prove that the proposed adjustment would in fact be successful to avoid the disadvantage. It was sufficient to show there was a chance it would be successful.
However, Employment Tribunal did not find it would have been reasonable for the Trust to have lowered their accuracy requirements for Ms Billingsley. The reasonable adjustment was to give her a fair opportunity to perform at an acceptable level, not to lower the threshold of acceptable performance.
The Employment Appeal Tribunal agreed with the Tribunal that, if the proposed adjustments gave a chance of avoiding unfavourable treatment, then that could be sufficient to justify them, as long as the administrative and financial burden on the employer was not unreasonable.
This case is a reminder to employers not to reject proposed adjustments too quickly on the grounds that they will not work. It also demonstrates the need for employers to make adjustments promptly before embarking upon performance management processes to avoid the tag that it is all “too little too late”.
If there is a chance that adjustments will work, they should be considered. However, ultimately reasonable adjustments are a balancing act and their reasonableness will depend on the size and resources of the employer in question. Seeking advice at an early stage can assist employers reach the stage where informed decisions can be taken.
Consistent with our policy when giving comment and advice on a non-specific basis, we cannot assume legal responsibility for the accuracy of any particular statement. In the case of specific problems we recommend that professional advice be sought.