Gareth Price discusses reasonable adjustments and s.15 claims in light of Northumberland NHS v. Ward.
In Northumberland Tyne & Wear NHS Foundation Trust v. Ward UKEAT/0249/18/DA, the Employment Appeal Tribunal has given further guidance on the interplay between s.15 and s.20 of the Equality Act 2010. Specifically, it has considered when failing to continue an existing adjustment will give rise to claims under both s.15 and s.20 of the Act.
The Claimant, an occupational therapist, suffered from chronic fatigue syndrome. This caused her to have more episodes of sickness and consequently more absences from work because of sickness.
In 2011, the Respondent adjusted its sickness absence policy to allow the Claimant 5 absence before triggering the policy, rather than the default 3.
The Respondent removed that adjustment in 2015. Other adjustments were made, but the Claimant was unable to meet the attendance requirements. This eventually led to her dismissal.
The Claimant brought claims including pursuant to s.15 and s.20 of the Equality Act 2010.
Those claims succeeded at first instance.
In respect of the s.20 claim, the ET held that:
- the relevant PCP for the purpose of the s.20 claim was that the Claimant “must maintain a certain level of attendance at work order not to be subject to a risk of disciplinary sanctions…”;
- That PCP “clearly constituted… a failure to make reasonable adjustments.”; and that
- There was ample evidence that the continuation of the adjustment would have “ameliorated the disadvantage resulting from the application of the policy”.
In respect of the s.15 claim, the ET held that:
- The failure to make the above adjustment constituted an act of unfavourable treatment of the Claimant arising in consequence of her disability; and that
- Such treatment could not be justified as being a proportionate means of achieving a legitimate aim. In particular, it stated that:
“Treatment which may constitute a breach of section 15 may nonetheless be justified. Since the Respondent did not recognise that it was under a duty to make reasonable adjustments to the trigger[ing of the policy], it cannot be the case that the Respondent gave proper and adequate consideration to the balancing of the legitimate needs of the Respondent’s service… The relevant balancing exercise did not in fact take place.”
The Respondent appealed the findings in respect of both claims.
Employment Appeal Tribunal
s.20 / Failure to make reasonable adjustments
The principal appeal in respect of s.20 focused on the Tribunal’s reasoning. In summary, it was argued that the Tribunal had in fact not only focused on the alleged failure to continue the existing adjustment, but had relied on other alleged failures to adjust not in fact pursued by the Claimant.
This argument is strictly a procedural one. Of greater interest for present purposes was the secondary argument – namely that even if it had been reasonable to have applied an extended trigger between 2011 and 2015, that did not necessarily mean that that adjustment remained reasonable thereafter. The Tribunal failed to consider whether the other adjustments that were made were in fact reasonable.
The Appeal Tribunal responded to that argument as follows:
“It is of course correct to note that there may be more than one reasonable adjustment capable of ameliorating the disadvantage in question. To take a simple example, a disabled employee who suffers pain as a result of his computer monitor being at a particular height relative to his chair might benefit from an adjustment to the monitor or to his chair. If one of those adjustments is sufficient and effective to ameliorate the disadvantage, and is made, the employer would not be acting unreasonably if it did not also adopt the other. However, the employer might not be acting reasonably if it chose to make other adjustments instead, such as improving the lighting or reducing the number of hours spent at the computer, if those adjustments did not in fact have the effect of avoiding the particular disadvantage in question. In the present case, the Tribunal came to the conclusion that the most effective reasonable adjustment to enable her to remain at work, namely the extended trigger, was not made, and that the other adjustments “were either not adjustments which ameliorated the disadvantage or only to a limited extent”: see paragraph 7.7. That was a conclusion that the Tribunal was entitled to reach, and to my mind, it discloses no discernible error of law at all.”
s.15 / Discrimination arising from disability
In respect of .s15, the Respondent contended the Tribunal did not engage at all with the rationale for the sickness policy, the evidence as to the operational needs which it served and appeared to take the approach that the Respondent’s failure to recognise that it had previously adjusted the policy for the Claimant effectively excluded any justification defence at this stage. The Respondent relied on City of York v Grosset  IRLR 746 to this end.
After noting that the Tribunal had dealt with the s.15 and s.20 claims together – and that it would have been better to deal with them separately - the Appeal Tribunal stated:
“Had the Tribunal’s analysis of justification in the present case ended after the sentence, “The relevant balancing exercise did not in fact take place”, there might have been more scope for arguing that there had been a failure to consider the matter objectively. However, it is quite apparent that the Tribunal did not stop there, and that it went on to consider expressly the various factors relevant to the balancing exercise for itself. Thus, it took account of the Respondent’s legitimate concerns for the quality of the service, that the Claimant was one of only two OTs and that she was struggling latterly to cope even with her reduced workload. Against that the Tribunal considered the effect on the Claimant of the failure to make the reasonable adjustment, the Respondent’s failure to undertake the tailored adjustment plan recommended by OH, its failure to apply the redeployment policy and to consult with the Claimant. Whilst not rich in detail, that analysis is, in these circumstances (where the adjustment had previously been in place), a perfectly adequate engagement with the objective analysis with which the Tribunal was tasked.”
Interestingly, the Respondent sought to rely on Seldon v Clarkson Wright & Jakes  ICR 716, to the effect that:
“…where it is justified to have a general rule, then the existence of that rule will usually justify the treatment which results from it…”
Consequently, could it be said that all the Respondent needed to do was justify the sickness policy – not the effect of the policy when applied to the Claimant?
No, according to the EAT.
First, the focus of s.15 is on the treatment being the target of the justification. According to Griffiths:
“…in the case of indirect discrimination it is the PCP which needs to be justified whereas in the case of discrimination arising out of disability is the treatment, but in practice the treatment will flow from the application of the PCP.”
Second, Seldon was dealing with age discrimination, which, unlike disability discrimination, does not require the employer to adopt more favourable treatment for disabled persons than non-disabled persons if that is reasonable. Allowing justification of the policy only would diminish the protection afforded by the Act.
This decision highlights several issues.
First, although the two claims are necessarily related, it is helpful for parties and Tribunals to keep s.15 and s.20 claims distinct. The analysis applicable to each is not the same.
Second, when determining if an adjustment is reasonable, the bar for a Respondent is high. If a particular adjustment has been made in the past, but is changed, altered or not continued, it must come to the Tribunal with good evidence that the original adjustment is no longer reasonable. One difficulty facing a Respondent is that it will have to show why the original adjustment is no longer the most effective way of alleviating the disadvantage.
Third, an objective assessment as required by Grosset remains the exercise that the Tribunal must undertake when determining if the Respondent can justify the unfavourable treatment.
Fourth, justifying unfavourable treatment under s.15 requires the treatment to be justified, not the policy itself. Lady Hale’s statements in Seldon will not assist a Respondent under a s. 15 challenge.
 Adopting the wording from Griffiths v. SoS for Work and Pensions  EWCA Civ 1265