Reasonably adjusted

Spence v Intype Libra Ltd

The Disability Discrimination Act 1995 (DDA) states that employers must make reasonable adjustments to prevent disabled people from being put at a substantial disadvantage in comparison with people who are not disabled.

In Spence v Intype Libra Ltd, the Employment Appeal Tribunal (EAT) said that a failure by an employer to obtain a medical report before dismissing someone was not a breach of the duty to make reasonable adjustments.

Basic facts

Mr Spence had worked as an IT manager for the company from October 1999. In August 2004 he suffered severe arm pain which turned out to be caused by a problem affecting his blood vessels. He had an operation in May 2005 after which he was very ill.

He remained off work until his dismissal in 22 August 2005 on grounds of capability. The company had extensive discussions with him during that time about a return to work in different capacities, but no resolution emerged.

Mr Spence claimed that his dismissal constituted unjustified disability related discrimination; and that his employer had failed to make a reasonable adjustment by not obtaining an up to date medical report.

The law

The DDA says that “a person has a disability … if he has a physical or mental impairment which has a substantial and long-term adverse effect on his ability to carry out normal day-to-day activities.”

Section 3A says that a person discriminates against a disabled person if, for a reason relating to a disabled person’s disability, that person is treated less favourably than someone else to whom that reason does not apply and the treatment cannot be justified.

Section 4A says that employers must take steps to make reasonable adjustments where:

• a provision, criterion or practice or
• any physical feature of premises occupied by the employer

place the disabled person at a substantial disadvantage in comparison with people who are not disabled.

Tribunal decision

The tribunal agreed with Mr Spence that his employer had dismissed him for a reason related to his disability. However, it said that this was justified because the company had tried extensively to accommodate his needs.

It did not think there were any other reasonable adjustments the company could have made. It accepted that they had not obtained a more up to date medical report before dismissing him, but, relying on Tarbuck v Sainsbury’s Supermarket Ltd, said that was not in itself a failure to make a reasonable adjustment.

EAT decision - definition of disability

The EAT said that Mr Spence's disability had to be assessed at the time that the discriminatory act took place. In this case, when he was dismissed.

It concluded therefore that the tribunal had been wrong to consider evidence which showed how Mr Spence’s medical position progressed after his operation at the end of May.

However despite this error in law, the EAT decided that the only conclusion consistent with the tribunal’s findings was that Mr Spence was disabled by the date of dismissal. By that stage he had actually suffered with an impairment which had lasted at least 12 months and which had had a substantial adverse impact on his day to day activities.

EAT decision - reasonable adjustment

The EAT agreed with Mr Spence that the concept of “reasonable adjustment” was a broad one, but that “the duty is not an end in itself.” The point of making reasonable adjustments was to protect the employee from any disadvantages that might otherwise arise.

In this case, it said that doing an assessment or obtaining a medical report would not of itself have achieved anything. It concluded therefore that the failure by an employer to carry out an assessment or obtain a medical report before dismissing someone was not a breach of the duty to make reasonable adjustments under the DDA.