Reasonable adjustments and the ticking clock of the law

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Employers know that they have a responsibility to make reasonable adjustments for employees with disabilities, but a new case has added that these must be made “within a timely manner”. Kate Walsh reports.

To what extent is an adjustment reasonable? A concern for all employers is whether or not they go far enough in making adjustments for disabled employees. The duty to make reasonable adjustments not only applies to physical features in the workplace, it extends to auxiliary aids or to a “provision, criterion or practice” adopted by an employer.

In a recent employment tribunal decision, the caveat to act in a timely manner was added to the employer’s duty to make reasonable adjustments under the Equality Act 2010.

Duckworth v British Airways plc

Mr Duckworth was a member of British Airways’ (BA) Worldwide cabin crew fleet. He suffered with diabetes, which was made worse by his coeliac disease. He became very unwell during a long-haul flight in October 2010 and was referred to British Airways Health Service (BAHS), the airline’s in-house OH department. BAHS’s advice was that Mr Duckworth was not fit for flying duties and should remain on ground duties for the foreseeable future.

However, Mr Duckworth was keen to return to flight duties and provided evidence to BA’s business manager for the Worldwide fleet that he was fit to fly. Another appointment was then made with BAHS.

A concern for all employers is whether or not they go far enough in making adjustments for disabled employees.”

In July 2011, BAHS advised that while Mr Duckworth could return to flight duties, it considered that he should be estricted to short-haul flights with BA’s Eurofleet for at least three months. A discussion was held between the Eurofleet and Worldwide fleet managers with a view to applying for a transfer of Mr Duckworth’s duties from long-haul to short-haul flights.

Ms Renata Caruso-Lorenzo, Worldwide fleet manager, rejected Mr Duckworth’s request to transfer on 30 September 2011 on the basis that there was insufficient work for Mr Duckworth with Eurofleet. This information was relayed to Mr Duckworth on 5 October 2011.

Disgruntled, the BA employee raised a grievance on the grounds that his disability should be recognised and a transfer from long-haul to short-haul flights made as a reasonable adjustment.

Mr Duckworth lodged a claim for disability discrimination as he was unsatisfied with the progress of his grievance. This appeared to prompt BA into action, as the request to transfer was reconsidered and he was placed back on a transfer list. Mr Duckworth returned to flying duties with BA’s Eurofleet on 13 May 2012. Acting in a timely manner

It was accepted during the tribunal proceedings that Mr Duckworth had a disability under the Equality Act 2010. The parties agreed that the provision criterion or practice – that of operating on long-haul flights when assigned to the Worldwide fleet – placed Mr Duckworth at a substantial disadvantage in comparison with other persons who were not disabled. The tribunal held that BA should have transferred Mr Duckworth to short-haul flight duties as soon as BAHS certified him as fit for duties with Eurofleet.

It was agreed that BA eventually made the reasonable adjustment, but did they act within a timely manner? According to the tribunal, BA did not.The tribunal was influenced by the fact that BA missed two opportunities to acknowledge their duty to make a reasonable adjustment.

It is crucial that all managers are appropriately trained to identify circumstances that may trigger the employer’s duty and recognise what action should be taken.”

The first occasion arose when Ms Caruso-Lorenzo felt there was insufficient work for Mr Duckworth with Eurofleet. Part of Ms Caruso-Lorenzo’s reasoning was that “a transfer could only be part of a rehabilitation plan resulting in Mr Duckworth’s return to Worldwide”. Given the advice provided by BAHS, it appeared that Ms Caruso-Lorenzo missed the point completely. The tribunal commented that “the point of making the adjustment [was] to avoid the disadvantage altogether”. Ms Caruso-Lorenzo refused Mr Duckworth’s transfer again on 28 November 2011, a second opportunity missed by BA.

The tribunal concluded that it would have been reasonable for BA to have taken the necessary action by September 2011.

The fact that Mr Duckworth was not informed of his transfer to Eurofleet until March 2012 resulted in a failure by BA to make reasonable adjustments under the Equality Act 2010.

Mr Duckworth received compensation of £8,532.42 in respect of his disability discrimination claim.

Practical implications

So what are the implications of this case for employers? The key issue is understanding the reasonableness of an adjustment. This depends on several factors, including:

  • whether or not the adjustment would actually prove beneficial in the long run;
  • whether or not the adjustment suggested is practical;
  • the impact of the adjustment on the business as a whole;
  • the financial and other costs of making the adjustment; and
  • the size of the business.

An element of proportionality should be applied, and it is clear that what would be reasonable for a multinational corporation may not be reasonable for a small company. In Mr Duckworth’s case, given the size of BA, it would have been reasonable to place him on a transfer list much more promptly.

It is crucial that all managers are appropriately trained to identify circumstances that may trigger the employer’s duty and recognise what action should be taken. In the above case, it appeared that certain members of BA did not appreciate this duty.

When assessing what adjustments should be made for a disabled employee, organisations should actively work with all departments and the employee concerned. If the employee is consulted about what proposed adjustments they have in mind, he or she is less likely to feel isolated by the whole process. Lastly, it is appreciated that some delays will be inevitable – but the lesson for employers is to avoid unreasonable delays.

Kate Walsh is a trainee solicitor at Capital Law LLP, a commercial law firm. For further information, please contact Kara Williams or Daniel Tyte or call 029 2064 6840. Follow Capital Law on Twitter @capitallawllp and Consult Capital @ConsultCapital

 

Book review
Discrimination Law and Occupational Health Practice
Edited by Diana Kloss and John Ballard
Published by The At Work Partnership Ltd 2012
ISBN: 978-0-9574407-0-8
Price: £45Reviewed by Greta ThornboryDiana Kloss and John Ballard have really hit the spot with this book. It answers and clarifies the many queries OH practitioners have over the Equality Act 2010. It backs up the explanations with examples from relevant case law, all interestingly expressed. For a law book, this is very easy to read and the prose is not too stiff and starchy, as is so often the case with “legalese”.Particularly useful for OH practitioners is the first chapter, which sets the scene and explains about the law, including criminal, civil and European.In chapter two, on the Equality Act 2010, each of the protected characteristics are individually explained. Subsequent chapters explore in-depth, with relevant examples from case law, the topics of sex discrimination, gender reassignment and sexual orientation, age discrimination, race and religion or belief. For OH practitioners, the chapters on pre-employment health screening and employment tribunals are extremely useful.

I am sure these chapters will serve to act as guidance and reassure OH doctors and nurses in their daily practice. The final chapter is an A-Z guide to the Equality Act 2010, which summarises the book.

The only aspects of this book I did not like were the type and the price. I found the typeface faint and difficult to read without a good light. The price – at £45 – is considerably more expensive than other paperback textbooks on similar subjects and of comparable size. However, a copy for each OH department for easy reference is essential, and it is an absolute must that the book be included on every OH course’s reading list.

Greta Thornbory MSc RGN SCPHNOH DipNOH PGCEA is an OH and educational consultant with 30 years’ experience in OH practice and teaching

The book can be ordered from the At Work Partnership.

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