Case law states that a disabled person cannot be held to have suffered a “substantial disadvantage” if a policy introduced by the employer allows for discretion in the way that it is applied. However, the Employment Appeal Tribunal (EAT) held in Martin v City and County of Swansea that such a policy can result in a disadvantage, as disabled people are likely to have higher levels of sick leave than non-disabled people.
After she was made redundant from her post, Ms Martin was redeployed into several different roles over a period of years. During this time she was off sick on a number of occasions due to stress.
In March 2017, she was diagnosed as having a “chronic medical condition” because of work-related stress. In April, she was placed in a supernumerary position within Employee Services, giving her a good opportunity to seek redeployment. Although she applied for a number of jobs during this period, she accepted that she often did not meet the necessary criteria.
In June 2017, Ms Martin suggested that the council instigate an “exit strategy”. She was invited to attend a final absence review meeting in October that year at which she was dismissed for lack of health capability, in accordance with Swansea’s Management of Absence Policy.
She brought a claim of failure to make reasonable adjustments as well as discrimination because of something arising in consequence of disability (among other things). Specifically, she argued that the Council had imposed a policy, criterion or practice (PCP) which, when applied to her, put her at a substantial disadvantage in comparison with non-disabled people.
The tribunal followed the decision of the Court of Appeal in Griffiths v Secretary of State for Work and Pensions (weekly LELR 456) which held that no substantial disadvantage can arise if the policy in question allows for discretion in the way that it is applied. As there was a discretion in the Management of Absence policy which allowed the Council to move Ms Martin to an alternative role, the tribunal rejected her claim that she had suffered the disadvantage of being put at increased risk of dismissal.
Given that the application of the policy, as a PCP, did not place Ms Martin at a substantial disadvantage in comparison with non-disabled persons, no duty to make adjustments arose and her complaint could not succeed.
Overturning that decision, the EAT held that tribunals must distinguish between the terms of an absence management policy and the way that it is applied. In particular, it pointed out that a policy could result in a disabled person being put at a substantial disadvantage because it was more likely to be applied to people with higher levels of sick leave, compared with non-disabled people. This was the case even if there was a discretion in the terms of the policy that could avoid the disadvantage.
In this case, it was clear that the application of the Management of Absence policy put Ms Martin at a disadvantage because she was at a greater risk of absence than people who were not disabled. That being so, she faced a higher risk of being dismissed because the discretion to find an alternative role might not be exercised in her favour.
However, the tribunal was correct when it held that the Council had taken all reasonable steps to avoid the disadvantage. Although it can be a reasonable adjustment to appoint a disabled person to a suitable vacancy without going through a formal application, it was not reasonable in this case to expect the Council to provide Ms Martin with an alternative role, given all the efforts it had made to redeploy her.
As such, the appeal failed.
This case highlights the requirement for clear evaluation of the terms and application of absence management policies to establish if the claimant has suffered disadvantage.
In addition, the EAT commented that where a party is represented the employment tribunal can expect the PCP to be properly identified and so representatives should always consider how it is pleaded with great care. A preliminary hearing for case management will often be a good opportunity to review whether the PCP as pleaded is workable and, if not, to consider whether an amendment might be required to rephrase it. But whatever PCP is finalised it should be given a reasonably generous reading when determining the claim.