Labour & European Law Review Weekly Issue 355 05 February 2014
When an employer knows (or should reasonably know) of a disabled person’s disability, they are under a duty to make reasonable adjustments. In The Environment Agency v Donnelly, the Employment Appeal Tribunal (EAT) held that the duty is on the employer to make the reasonable adjustments, not the employee.
Ms Donnelly, a longstanding employee of the Environment Agency, suffered from osteoarthritis of the knees and spondylitis which affected her back and hips. She was therefore disabled within the meaning of the Disability Discrimination Act (in force at the time).
She started having problems when she changed jobs in 2007 and her work arrangements altered. After an occupational health assessment, it was decided in August 2009 that she could no longer do her job. As a result she was signed off sick. She was offered a temporary post in January 2010 but went off with stress after two weeks and was dismissed for incapability in January 2011.
She claimed direct and indirect discrimination, failure to make reasonable adjustments and harassment as well as unfair dismissal.
Although it rejected most of her claims, the tribunal accepted that she had been subject to harassment by four employees, one of whom sent her an e-mail shortly after she went on sick leave, which referred to her “negativity” and her unwillingness to fulfil any role within the agency.
It also upheld her claim that the agency had failed to make reasonable adjustments by not giving her an allocated car parking space in the main car park. As this was usually full by 9.30am when she arrived, she had to park in the overspill car park which was ten minutes’ walk away. Her employer had suggested that she either got to work earlier to ensure a space in the main car park or it could arrange for her to be “shuttled” backwards and forwards to the overspill car park.
The tribunal also agreed that she had been unfairly dismissed as “the prospect of an imminent return to work was not so remote as to justify the termination of [her] employment”. As her dismissal was not a proportionate means of achieving a legitimate aim, it was also an act of discrimination arising from her disability.
The EAT allowed the employer’s appeal in relation to the harassment claim, finding the tribunal’s decision was “perverse”. Although the e-mail was less than supportive, the EAT held that it did not come within the definition of harassment in section 3B of the Equality Act 2010 because it did not have the “purpose or effect” of violating Ms Donnelly’s dignity or of “creating an intimidating, hostile, degrading, humiliating or offensive environment”.
However, it rejected the Environment Agency’s appeal against a failure to make reasonable adjustments. It had argued that the provision, criterion or practice (PCP) was that Ms Donnelly should arrive by 9 am ad that she was not put at a substantial disadvantage because all she had to do was arrive earlier. The EAT disagreed and found that the tribunal had correctly identified the PCP as being a requirement to walk a distance from her car to the office in the prevailing cold weather and possibly on uneven surfaces. Furthermore, Ms Donnelly was entitled not to have her start time dictated by her employer in order to avoid the disadvantage.
As for the finding of unfair dismissal, the EAT held that the fairness of the dismissal was not clear and inevitable and that as the discrimination claim “goes hand in hand with the unfair dismissal claim”, both were remitted back to the same tribunal.
This case is a useful reminder that the obligation to make reasonable adjustments in a claim of disability discrimination is firmly on the employer. It is not for the employee to adjust working arrangements provided for under their contract of employment in order to reduce the substantial disadvantage.