Labour & European Law Review Weekly Issue 488 22 September 2016
The Equality Act states that the duty to make a reasonable adjustment applies where a provision, criterion or practice puts a disabled person at a substantial disadvantage in comparison to a person who is not disabled. In Lowmoore Nursing Home Ltd v Smith, the Employment Appeal Tribunal (EAT) held that the employer should have made the reasonable adjustment of moving the claimant to a different unit to avoid heavy lifting.
Ms Smith, who suffered from a medical condition which could be exacerbated by heavy lifting, worked in a care home that was divided into three units – Oak, Cedar and Silverbirch. Although the patients on Oak had challenging behavioural issues, they were more mobile and independent than those on Silverbirch or Cedar, who needed physical intervention. When Ms Smith worked on Cedar, her sickness record escalated to the point whereby she was at risk of disciplinary action but improved when she was transferred to Oak.
She was then rostered to work at Silverbirch by a manager, Ms Taft, who was unaware of Ms Smith’s disability at that time. Ms Smith met with Ms Taft to explain her condition Subsequently Ms Taft received a letter from Ms Smith’s doctor confirming that she had a heart condition and should not be doing any heavy lifting. Ms Taft then carried out a generic risk assessment (which was not specific to Ms Smith’s condition) nor did she meet with Ms Smith to find out anything more about her condition and/or how the transfer to Silverbirch might impact on her.
Ms Smith went off sick and lodged a grievance which was rejected. She was given a first written warning because of the extent of her sick leave. After working for a few days at Silverbirch she resigned, saying that the work was too physical and would impact on her health. She claimed that she had been put at a substantial disadvantage by her employer’s failure to make reasonable adjustments so that she could avoid doing any “heavy lifting”.
The tribunal held that once Ms Taft became aware of Ms Smith’s medical condition, she should have reviewed the rotas and agreed to Ms Smith’s request to be moved back to Oak. Either that or Ms Taft could have agreed to a trial period for Ms Smith on Silverbirch. In addition, the tribunal held that Ms Smith was disadvantaged by the use of the Bradford scale to monitor her sickness absence which was due to her disability.
The care home appealed on the basis that the tribunal was wrong to uphold Ms Smith’s claim that there had been a failure to make a reasonable adjustment because of the requirement to carry out general physical demands of the job. Ms Smith, however, had claimed that it was because of the requirement to carry out heavy lifting which the home considered was not the same.
The EAT dismissed the appeal, holding that the tribunal had based its decision on the concerns specified by Ms Smith which required her to undertake heavy lifting.
Although the care home had argued that there was no heavy lifting involved in the work at Silverbirch because they provided lifting equipment, the tribunal preferred Ms Smith’s evidence. She said that as the equipment was often in use and therefore not always available, working on Silverbirch involved “concentrated physical exertion” for carers throughout their eight-hour shifts
Whilst there was a difference in view between Ms Smith and the care home as to whether heavy lifting was involved in working at Silverbirch, Ms Smith could not be blamed for not explaining why she held that view as Ms Taft had refused a meeting with her to discuss her concerns.