The law says that employers have to make reasonable adjustments if they have imposed a provision, criterion or practice (PCP) that has disadvantaged a disabled employee. In Gillespie v Guy’s and St Thomas’ NHS Foundation Trust, the EAT held that tribunals must ensure that they analyse the PCP identified by the claimant and determine the reasonable adjustment claim that is before it.
Ms Gillespie, who had worked for the trust from 2011 as a community staff nurse, was told in October 2015 that she needed to improve. After going off sick, she was diagnosed with a serious medical condition in May 2016. In January 2017, she submitted a grievance alleging a lack of management support during her sickness absence and challenging the process concerning the improvement notice. A year later, she lodged tribunal proceedings alleging disability discrimination.
In June 2018, Occupational Health produced a report stating that Ms Gillespie was unfit to return to her substantive post but that she could work in a role that did not require walking or standing for more than two or three minutes or regular manual handling. After attending a sickness absence meeting in August, she was sent a redeployment registration form. However, she sent an email to the trust on 22 November 2018, complaining that they had not contacted her about the possibility of redeployment. She resigned on 12 December.
In January 2019, Ms Gillespie successfully applied to amend her earlier claim form to add constructive unfair dismissal and a failure to make reasonable adjustments, on the basis that the trust’s PCP of requiring her to be fit and well enough to perform her contractual duties as a staff nurse put her at a substantial disadvantage, in comparison with employees who were not disabled. As for the requirement to provide reasonable adjustments, she argued that the trust had failed to offer her a sedentary role, contrary to section 20(3) of the Equality Act.
Section 20(3) is made up of three parts:
- The employer has applied a PCP
- The PCP has placed the disabled person at a substantial disadvantage in comparison with non-disabled people
- The employer must take such steps as are reasonable to avoid the disadvantage.
The tribunal upheld Ms Gillespie’s claim of constructive unfair dismissal but rejected the complaint of a failure to make reasonable adjustments, holding that the PCP would apply to any employee.
Although the trust should have applied the redeployment policy to Ms Gillespie, the tribunal found that it did not do so because she had failed to return the form to them. As such, there was no general practice of failing to contact staff about redeployment and no PCP had been applied to Ms Gillespie at all.
Upholding the appeal, the EAT held that the tribunal had “lost sight” of the PCP that Ms Gillespie had relied on. That is, the PCP of requiring her to be fit and well enough to perform her role as a staff nurse. Instead, it had focused on a PCP relating to the application of the redeployment policy.
It, therefore, remitted the issue to the same employment tribunal to consider whether the PCP of “requiring the claimant to be fit and well enough to perform her contractual duties” had been applied to her, whether it placed her at a substantial disadvantage in comparison with people who were not disabled and, if so, whether it would have been reasonable to redeploy her to some alternative role because there was a prospect that she would have been able to undertake it.