Reasonable Adjustments: A Headache for Employers?

Under the Equality Act 2010 (replacing the Disability Discrimination Act 1995 (DDA)), employers with disabled employees must make reasonable adjustments to facilitate those disabled workers in their roles. ‘Disability’ can cover a number of conditions as diverse as backache and migraines, as in the case of Royal Bank of Scotland v Ashton EAT Dec 2010.

Mrs Ashton had a lot of time off on full pay due to migraines and eventually RBS stopped her sick pay in line with their sick pay policy and gave her a warning. She claimed that this amounted to disability discrimination and failure to make reasonable adjustments. The Employment Appeal Tribunal held that the "reasonableness" of RBS's actions was irrelevant. ‘What matters is whether there was an application of the policy which caused a disadvantage which was substantial in comparison with persons who were not disabled’.

A non-disabled employee might also have had his sick pay stopped due to long term sickness absence. The financial hardship to each would be the same. If anything, Mrs Ashton was probably given more paid time off than had she not been disabled.

The EAT concluded that there was absolutely no case to argue that there had been discrimination or a failure to make reasonable adjustments and Ms Ashton's original claims were dismissed. When considering whether reasonable adjustments were made in a disability discrimination case, a tribunal:
(i) must identify the disadvantage that has been suffered and;
(ii) must judge the reasonableness of adjustment by its result, not the employer’s thought process behind it.

Whilst this case offers some assurance to employers that they are not expected to offer employees open-ended sick pay just because they are off sick due to a disability, it is worth remembering that the Ashton case was decided under the DDA and not the Equality Act 2010, and so caution must be used when applying the principle.

Fines & Fees in the Employment Tribunal?

The government announced its proposals to shake up the Employment Tribunal last week. Some employers see the proposed changes as a lifeline to help combat claims with little merit. However it’s not all good news for businesses. Consultation will go on till the 20th April 2011. Currently the proposals include:

• The minimum qualifying period for unfair dismissal claims to increase to 2 years (from one year at present). The idea is that employers will feel much more comfortable about hiring staff, knowing that they can dismiss them reasonably safely in the initial period. However there would still be a range of claims which can be brought with no qualifying service.
• Claimants will have to pay a fee for lodging claims. Whether those fees would discourage ‘have-a-go’ claimants remains to be seen. Employee groups are likely to argue that Claimants on benefits should be exempt.
• All claims will have to be submitted to ACAS for a month of pre-claim conciliation before proceeding. The new proposals for compulsory ACAS involvement seem sensible, but again how effective that will be in reducing claims is open to question.
• Automatic financial penalties for employers found to have breached employment rights, on top of the ordinary compensation already payable, probably ½ the total award made to the claimant, and payable to the Exchequer. This would be very unwelcome news for employers, who may feel they are already in a lose-lose situation when defending Tribunal claims, and would be likely to force them to settle claims unless the issues are very clear indeed.
• Employment judges to sit alone (rather than in a panel of three) in more cases including unfair dismissal claims where the facts or law are relatively uncomplicated. However many claims are anything but straightforward and claimants would still be likely to press for a full panel where possible.
• Reviewing the level of Tribunal awards. This seems unlikely to have the effect of significantly reducing payments to claimants though.

We will update you when the consultation ends.