When considering whether an adjustment is reasonable for an employer to make in disability discrimination cases, the Employment Appeal Tribunal (EAT) in South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley held that if even there is only a chance that the adjustment might avoid the unfavourable treatment, it is still reasonable to expect a large employer to implement it.
Basic facts
Ms Billingsley was employed as a data input clerk for the Trust transferring manual records onto computerised systems relating to children from birth onwards. Accuracy was essential as the computer record generated the appropriate times for immunisation and developmental checks. Ms Billingsley, who suffered from dyspraxia, was slower than other clerks at absorbing, retaining and processing information.
Although the Trust commissioned a report in 2009 about what could be done to help her, it failed to implement the main recommendations which were to provide certain technical aids as well as 50 hours of specialist training sessions for her. Following the introduction of a new computer system in 2010, the Trust started monitoring her individual error rate which was found to be 19 per week in the four weeks up to 4 November 2011 as opposed to a target rate of nought to two.
Following a series of informal meetings and an Access to Work assessment in 2011 which recommended 40 hours of specialist tuition, the Trust finally provided the recommended technical aids and 20 hours of tuition. As a result, her performance improved. However, it rose again when her supervisor went on maternity leave. When the Trust started reviewing her performance formally in 2013, it found that she was making ten times as many errors compared to a non-disabled colleague.
She was dismissed on capability grounds in June 2014. Ms Billingsley claimed that the Trust had failed to make reasonable adjustments as required under section 20 of the Equality Act; had discriminated against her under section 15; and had unfairly dismissed her. The Trust argued that even if it had provided the additional support, it would not have made any difference.
Tribunal decision
The tribunal, however, disagreed, holding instead that the Trust had done too little too late for Ms Billingsley. Firstly, it failed to provide the technical aids that had been recommended before starting to monitor her performance; and secondly, it only provided 20 hours of the specialist tuition, as opposed to 50 hours as recommended in the 2009 report.
Although the tribunal found that her complaint that the Trust had failed to make reasonable adjustments was out of time and some were not reasonable (for instance that the Trust should not expect her to be as accurate as her colleagues), it held that the Trust had discriminated against her under section 15. She had also been unfairly dismissed because had all the reasonable adjustments been implemented, she might not have been dismissed.
In coming to this conclusion, the tribunal weighed up the “prospects of success in achieving the desired objective” for Ms Billingsley against the cost and difficulty involved in making the adjustment for the employer. It was not, however, necessary to show that the reasonable adjustment would avoid the disadvantage or unfavourable treatment; there just had to be a “chance” that it would.
EAT decision
The EAT dismissed the Trust’s appeal, holding that if there was a chance that the adjustment might result in avoiding the unfavourable treatment, then it was reasonable to expect a large employer (such as the Trust) to implement it.