Chain of causation
Labour & European Law Review Weekly Issue 345 13 November 2013
Under disability law, employers are required to carry out a reasonable adjustment when they know (or should have known) of the person’s disability. In Osei-Adjei v RM Education, the Employment Appeal Tribunal (EAT) held that employers who fail to make an adjustment are not liable to pay for the claimant’s future loss of earnings if the claimant breaks the chain of causation by resigning.
Mr Osei-Adjei started work for RM Education in January 2010 as an education consultant. He disclosed that he suffered from dyslexia but no adjustments were made for him, nor did he think any were necessary at that time.
His manager expressed concerns about the standard of his work in February 2010 and he admitted that he was finding the workload stressful. The company provided him with a mentor and placed him on a performance improvement plan (PIP) in May 2010 before doing a workplace assessment.
He was signed off by his GP in early June and was later found to be suffering from moderate depression. The company’s occupational health advisers carried out an assessment of his dyslexia towards the end of the year and he was asked to come in for a meeting in January 2011 to discuss their recommendations and to agree a date for his return to work.
A few days after being deemed fit for work with all the adjustments in place (or due to be put in place), he resigned and claimed constructive unfair dismissal and disability discrimination.
The tribunal dismissed his claim for unfair dismissal but held that the company was guilty of disability discrimination because it had not assessed the effect that the dyslexia was having on Mr Osei-Adjei in relation to his performance before placing him on the PIP.
It decided to award him £4,000 for injury to feelings and £10,000 for psychiatric injury, but said he was not entitled to compensation for loss of future earnings because the chain of causation was broken when he resigned. Mr Osei-Adjei appealed against that decision and the company appealed against the compensation award.
The EAT commented that it was in the “unusual and uncomfortable situation” of having to consider the consequences of the tribunal’s finding that a failure to carry out a workplace assessment amounted to a failure to make a reasonable adjustment, which was not possible as an adjustment under the Equality Act. A reasonable adjustment must be an adjustment designed to enable the employee to attend work or return to work. Carrying out an assessment achieved neither of those things.
It dismissed Mr Osei-Adjei’s appeal against the loss of future earnings, holding that he was fit to work when he resigned, his job was open to him and all reasonable adjustments had been or would be made. The only thing the employer had done wrong was not to have carried out an assessment, which was not the reason Mr Osei-Adjei resigned.
The EAT held that, as Mr Osei-Adjei’s condition had been diagnosed as mild, the award for psychological injury should fall within the category of “minor” rather than “moderate” damage and be reduced from £10,000 to £5,000. There were also additional causes for his symptoms after he resigned, apart from the failure to carry out an assessment before his return to work. As a result, it reduced his personal award to £2,000.