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Environment Agency v Rowan

The Disability Discrimination Act 1995 (DDA) says that employers have to make reasonable adjustments in certain circumstances. In Environment Agency v Rowan (2008 IRLR, 20) the Employment Appeal Tribunal (EAT) said that homeworking did not constitute an adjustment as such.

Basic facts

Mrs Rowan slipped and hurt her back at work in 1993. Despite surgery in 1997, her condition became worse. In December 2002, she moved 50 miles away from her workplace but when she asked in November 2003 to work from home, this was refused. She went on long-term sick leave in September 2003.

In October 2005, Mrs Rowan obtained her occupational health records which contained transcripts of recorded telephone conversations between the occupational health doctor and her manager suggesting that Mrs Rowan did not really want to return to work at all. She lodged a grievance which was heard in January 2006 but not upheld.

On 27 January 2006 she resigned on the basis that the Environment Agency had “repudiated” (in other words, metaphorically torn up) her contract and claimed disability discrimination, among other things. The Agency agreed that she was disabled for the purposes of the Act, but denied discriminating against her.

Relevant law

Section 3A of the DDA says that a person discriminates against a disabled person if “for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply” and cannot justify it.

The section also says that it is discriminatory not to comply “with a duty to make reasonable adjustments imposed on him in relation to the disabled person”. This can only be justified if “the reason for it is both material to the circumstances of the particular case and substantial ...”

Section 4 A says that where employers apply a “provision, criterion or practice” which places a disabled person “at a substantial disadvantage” in comparison with people who are not disabled, they have a duty to take reasonable steps to prevent the disabled person being placed at a substantial disadvantage.

Tribunal decision

The tribunal found in Mrs Rowan’s favour. It said that the Agency was guilty of disability discrimination in that it had treated her less favourably than an able bodied employee. She had been “required to work 100% in an office with which she had difficulties whereas an able bodied employee would not”.

It also said that the Agency had failed to make reasonable adjustments, which it could not justify. In particular, it had not assessed her homeworking request adequately; it had not considered allocating her duties to someone else; nor had it allowed job sharing or even an initial trial of home-working for a limited period.

EAT decision

The EAT, however, overturned that decision. It said that as the tribunal had not identified the “nature and extent of the substantial disadvantage” suffered by Mrs Rowan, it was not in a position to decide what adjustments would have been reasonable to overcome her employer’s requirement to work in the office.

In particular, it had not explained how homeworking would have overcome her “substantial disadvantage”. The EAT felt that a trial period was more of “a procedure that an employer should sensibly adopt in an appropriate case but does not appear to be an adjustment as such”. Nor was it specifically referred to anywhere in the DDA as a reasonable adjustment.

Instead it felt that “a trial period is akin to a consultation, or the obtaining of medical and other specialist reports; these do not of themselves mitigate or prevent or shield the employee from anything. They serve to better inform the employer as to what steps, if any, will have that effect, but of themselves they achieve nothing.”

It remitted the case to be reheard by a different tribunal.