Romec Ltd v Rudham
The Disability Discrimination Act (DDA) requires employers to make reasonable adjustments for disabled employees.
In Romec Ltd v Rudham, the Employment Appeal Tribunal (EAT) said that tribunals must think about whether the adjustment would actually remove the disadvantage faced by the employee. Only then should it think about whether the adjustment was reasonable.
Mr Rudham worked alone as a security systems maintenance engineer. He was required to drive a lot and worked at height from ladders or steps.
He was signed off sick in January 2004, and was seen by an occupational health doctor in May 2004 who diagnosed chronic fatigue syndrome. He recommended a phased return to work under a rehabilitation programme which started in July 2004.
After an increase in his hours in August, Mr Rudham then went off sick again in October. He had a meeting with the general manager, Mr Nimmons, in December who warned him that he might be dismissed because of his high sickness rates.
He was dismissed in January and appealed in February 2005 on the basis that he was fit to do sedentary work and that he wanted to continue the programme of structured rehabilitation. His appeal was dismissed and he claimed disability discrimination and unfair dismissal.
Section 3A of the Disability Discrimination Act states that a person discriminates against a disabled person if-
(a) 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
(b) he cannot show that the treatment in question is justified.
Section 4A requires employers to make adjustments where:
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.
The tribunal decided that Mr Rudham was disabled under the meaning of the DDA, and that the company was therefore under a duty to make reasonable adjustments. However, it had failed to do so, apart from the phased rehabilitation programme which it did not extend.
Mr Rudham had also been less favourably treated than an employee who was not absent from work. The company could not justify that less favourable treatment, not least because it had failed to comply with the duty to make reasonable adjustments.
Had the rehabilitation programme been extended, his internal appeal would have succeeded and his dismissal was therefore unfair.
The EAT agreed with the tribunal that the duty to make reasonable adjustments had been triggered, but that it then asked itself the wrong question.
It should have asked whether extending the rehabilitation programme would have enabled Mr Rudham to return to work full time as an engineer? It is “only after that question is answered can the Tribunal go on to answer the principal question, is that a reasonable step to take to remove the disadvantage suffered by the Claimant?”
It remitted the case to the same tribunal, directing it to consider, among other things, whether the company’s failure to extend the rehabilitation programme represented a failure to make a reasonable adjustment.