Foster v Cardiff University
In DLA Piper’s case of the week, the Employment Appeal Tribunal (EAT) considered the issue of reasonable adjustments for an academic with chronic fatigue syndrome and how stress and anxiety affect that condition.
The claimant, a lecturer, appealed to the EAT against the employment tribunal’s dismissal of her complaints of disability discrimination and harassment. The core of the claimant’s case concerns an alleged breach by Cardiff University of its duty to make reasonable adjustments in the allocation of teaching requirements for the academic year 2010/11.
The claimant suffers from chronic fatigue syndrome. The university distributed duties between lecturers using a points-based system (known as the Marriott formula). Under this system, points were allocated to each task depending on how demanding the task was, rather than how long it would take to complete. The university implemented a number of temporary measures to assist the claimant in managing her workload. One of these was to allocate fewer points than average to the claimant.
In 2010, the respondent decided to increase the target number of Marriott points allocated generally among academic staff for the academic year 2010/11 to 350 points (plus or minus 10%).
On 1 August 2010, before the start of the year, the claimant was signed off sick. While the claimant was off sick, she was allocated 331 Marriott points. Although this was an increase to the points previously allocated, it was less than the average and was the third lowest in the department. After some discussion, the claimant’s points were eventually lowered to 307 points. The claimant returned to work on 20 October 2010. On 2 December 2010, she was signed off sick again and did not return to work. The claimant suffered from anxiety and stress and medical evidence showed that this had the effect of triggering or exacerbating her chronic fatigue syndrome.
The employment tribunal dismissed the claimant’s disability discrimination and harassment claims. In her appeal to the EAT, the claimant argued that:
- the tribunal erred in not having regard to the effect that anxiety and stress had on her disability; and
- the tribunal was wrong to conduct a comparison exercise between the claimant and a person who did not have her disability, and that this approach was incompatible with European law.
The EAT held that the employment tribunal was not required to examine the cause of the claimant’s disability, only its effect. The claimant’s disability was chronic fatigue syndrome. Anxiety and stress should be considered when they go to the nature of the disability itself, but in this case, they acted as triggers for the claimant’s condition and there was no requirement for the tribunal to investigate the cause of the disability.
In respect of the claimant’s second ground of appeal, the EAT held that the tribunal was correct to compare the claimant to a person without the relevant disability. Domestic legislation required there to be not only a substantial advantage, but a substantial disadvantage in comparison with a person who does not have the relevant disability.
This decision is a helpful reminder that tribunals are not required to look into the cause of an impairment. This is the case even if the cause is a consequence of a condition that is excluded, such as an addiction to alcohol. Therefore, if the claimant suffers from a physical impairment, such as liver disease, or a mental impairment, such as clinical depression, caused by addiction to alcohol, the tribunal does not need to consider the cause, only the effect of the impairment. However, the claimant could not rely on addiction to alcohol as the impairment.
The EAT also took the opportunity to clarify that the correct comparator in reasonable adjustment cases is a person who does not have the relevant disability. Although this is not a change in the law, it does act as a helpful reminder of the correct test.
Mary Clarke is a partner at DLA Piper
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