Dr Louise Tarbuck worked as a business analyst and IT project manager for Sainsbury’s. She suffered from ulcerative colitis and depression, and was absent from work.
She subsequently brought claims for disability and sex discrimination, which were settled by way of a settlement agreement in October 2002, which provided for Sainsbury’s to facilitate Tarbuck’s return to work.
At the time of the settlement agreement, Sainsbury’s was about to commence a major business centre organisational review, restructuring and redundancy process (the BCR process). Tarbuck was assigned a temporary role within the BCR central team and returned to work in March 2003.
In June 2003, Tarbuck was informed she was at risk of redundancy. ‘At risk’ employees were given priority when applying for internal vacancies. She appealed against her ‘at risk’ status, claiming it unfairly disadvantaged her and prevented her return to work post-rehabilitation, and Sainsbury’s subsequently removed it. However, this meant she was no longer given priority when applying for internal vacancies. Her subsequent application for a project manager role in finance systems was unsuccessful.
Subsequently, she was formally placed ‘at risk’ of redundancy a second time. She then commenced a period of sick leave lasting until her employment terminated by reason of redundancy on 2 February 2004.
Tarbuck brought claims of unfair dismissal and disability discrimination against Sainsbury’s. One of the central issues in the case was whether Sainsbury’s had failed to make a reasonable adjustment by failing to consult with her over alternative employment. The tribunal found that it had. Sainsbury’s appealed.
The EAT upheld Sainsbury’s appeal and ruled that a failure to consult about reasonable adjustments is not in itself a breach of the duty to make reasonable adjustments. If no reasonable adjustments can be made for a disabled employee, the employer will not have acted unlawfully, even if it failed to consider the issue and discuss it with the employee.
A failure to consult about reasonable adjustments is not in itself a breach of the duty to make reasonable adjustments. This conflicts with an earlier EAT authority, and the Disability Rights Commission’s Code of Practice, so a Court of Appeal decision is needed to determine the issue.
If there are no reasonable adjustments that can be made for a disabled employee, the employer will not have acted unlawfully, even if it failed to consider the issue and discuss it with the employee. However, employers should continue to consult with disabled employees about reasonable adjustments to ascertain whether adjustments are necessary.
What you should do
Always conduct a proper assessment of any adjustments that might be reasonable.
Consult with disabled employees regarding adjustments.
Consult with appropriate advisers, eg occupational health professionals, regarding adjustments.e to consult with disabled employees about reasonable adjustments to ascertain whether adjustments are necessary.
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By Joe Glavina, legal director, and Phil Williams, associate, Addleshaw Goddard