Adjusting to dismissal

Fareham College v Walters

Under the 1995 Disability Discrimination Act (DDA), it is discriminatory for employers not to make reasonable adjustments if a provision, criterion or practice disadvantages a disabled person. In Fareham College v Walters, the Employment Appeal Tribunal (EAT) said that if an employer fails to make reasonable adjustments, any subsequent dismissal could, in itself, be an unlawful act of disability discrimination.

Basic facts

Ms Walters, a lecturer at Fareham College since 2004, went off sick in January 2005 with plantar fasciitis and again in November and December. She was off work again in February 2006 with a variety of complaints and never returned.

The college held a meeting with her in July 2006 to discuss her continuing sickness absence, at which she asked for a phased return to work. The occupational health doctor reported in July that she might be ready for a phased return by September.

A second absence review meeting was held in August 2006, at which Ms Walters asked that the college defer its decision about her return to work until January 2007. It refused her request and dismissed her at a meeting on 7 September 2006, although she now had a diagnosis (fibromyalgia) and a date for surgery.

Ms Walters appealed unsuccessfully and then lodged a tribunal claim on the grounds of disability-related discrimination and the failure to make reasonable adjustments by refusing her a phased return to work, among other things.

Tribunal decision

The tribunal found in her favour, saying that the college had imposed a “provision, criterion or practice” that she had to return full time. This placed her at a substantial disadvantage in comparison with non-disabled people.

The college did not then take such steps as were reasonable in the circumstances in order to prevent the provision, criterion or practice having that disadvantageous effect. For instance, delaying a decision about her return to work until January 2007; failing to obtain up to date medical information; failing to pursue the idea of redeployment; failing to consider adjusting her hours.

It also drew the inference from the available evidence that she had been treated less favourably for a reason related to her disability (plantar fasciitis and fibromyalgia)

EAT decision

The EAT agreed that the “provision, criterion or practice” identified by the tribunal was the college’s refusal to allow Ms Walters a phased return to work. It said that the comparator group in these circumstances (the failure to make reasonable adjustments) was other employees “who are not disabled and who are able forthwith to attend work and to carry out the essential tasks required of them in their post. Members of that group are not liable to be dismissed on grounds of disability, whereas because of her disability the Claimant could not do her job, could not comply with that criterion and was liable to dismissal.”

This comparative exercise was therefore very different from the individual, like-for-like comparison required in cases of direct sex or race discrimination or in disability-related discrimination claims.

As a result, there was no need to carry out the comparator exercise identified in Mayor and Burgesses of London Borough of Lewisham v Malcolm (weekly LELR 81) which required the comparator to be a non-disabled person in the same circumstances.

The EAT concluded that, instead of making one of a number of possible adjustments, the college chose to dismiss Ms Walters and as a result treated her less favourably than others. Given the failure to make reasonable adjustments, the dismissal itself was an unlawful act of disability discrimination.