Royal Bank of Scotland v Ashton
The 1995 Disability Discrimination Act (DDA) makes clear that the test for whether or not an employer has failed to make a reasonable adjustment is an objective one, The Employment Appeal Tribunal (EAT) has reaffirmed that approach in Royal Bank of Scotland v Ashton, emphasising that tribunals must consider the practical effects of the adjustment, not the employer’s thought processes that led them to their decision.
Ms Ashton’s union, Unite, instructed Thompsons to act on her behalf.
Basic facts
In November 2006, Ms Ashton - who had worked for RBS from 1989 - started having severe migraines which resulted in frequent, although intermittent, absences from work, totalling 128 days between 2007 and 2008.
As part of its duty to make reasonable adjustments, RBS allowed her to take up a less demanding role and to stop working on a Saturday. It made changes to her workstation and referred her to occupational health.
Initially, it did not instigate a sickness review, normally triggered by an absence of more than 14 working days in 12 months or 14 continuous calendar day (unless the absences were disability-related in which case the trigger points could be relaxed).
However, in May 2008 Ms Ashton was asked to attend a disciplinary hearing, at which she received a 12-month warning in relation to her attendance. As was the usual practice, the company withheld her sick pay for the period of the warning.
She complained that RBS was in breach of her contract and in breach of the DDA.
Tribunal decision
And the tribunal agreed with her. It said that the bank should have made a reasonable adjustment and exercised their discretion to relax the sickness policy to accommodate her disability and continue paying her sick pay.
It also said that she had been treated less favourably in the way in which the bank applied the sickness absence procedure. This constituted a provision or practice which put her at a substantial disadvantage in comparison with a non-disabled employee who had been off work for a similar length of time at her branch, but who had not been disciplined.
EAT decision
The EAT, however, disagreed and was scathing in its criticisms of the tribunal’s reasoning and findings.
It emphasised that tribunals must consider the practical effects of the reasonable adjustments, not the employer’s thought processes that led them to “the making or failure to make a reasonable adjustment”. The question for tribunals is whether, “using an objective measure”, the adjustment was reasonable.
In terms of withholding sick pay, the EAT said that very few employees were likely to succeed in a claim arguing that a failure to pay sick pay was a failure to make a reasonable adjustment. Ms Ashton was not one of them.
It also criticised the tribunal for choosing an allegedly non-disabled comparator at the bank who was, in fact, regarded by the bank as being disabled. According to case law, the comparator has to be someone who is in the same relevant circumstances as the claimant, but who is not disabled.
Even if the comparator could be regarded as non-disabled in this case, however, the EAT said she was not in the same circumstances as Ms Ashton.
It concluded that as RBS had relaxed the trigger points in the sickness policy to Ms Ashton as a disabled person (which was not available to non-disabled people), there was no failure to make reasonable adjustments to the sickness policy.