In order to trigger the duty to make reasonable adjustments, claimants have to show that the employer knew (or ought to have known) about their disability. In Preston v E.on Energy Solutions Ltd, the EAT held that once it had been made aware of the claimant’s disability, the company did all it could in terms of making adjustments.
After working at E.on on an agency basis, Mr Preston accepted a permanent post in October 2016. Although he had told the recruitment agency that he suffered from Primary Reading Epilepsy (PRE), this information was not passed on to E.on. In the course of filling out the necessary paperwork for the permanent post, however, Mr Preston ticked the box to say that he had a disability. He was then sent a pre-employment health questionnaire, but he did not return it.
During the winter of 2016/2017, Mr Preston went off sick on numerous occasions with stress and a back complaint. On his return, the company undertook a number of stress risk assessments, as well as an occupational health (OH) assessment. He then went off sick again in September 2017 due to anxiety and depression. E.on undertook further assessments in October of that year, at which point it became aware that he had PRE but still did not know of the connection between epilepsy and stress.
After the company made some adjustments, Mr Preston returned to work briefly in November 2017 but soon went off sick again, saying he felt overwhelmed and that this had heightened his PRE. After an extensive package of support was put in place, it was agreed he would return to work in January 2018. He failed to do so, despite reports from OH saying he was fit to return. He was dismissed with effect from June 2018.
Mr Preston brought claims of disability discrimination. In particular, he argued that his dismissal constituted unfavourable treatment; and that by imposing a provision, criterion or practice (PCP) which required him “to read constantly from a computer screen while simultaneously talking to customers on the telephone”, E.on had put him at a “substantial disadvantage” compared to non-disabled people.
The tribunal agreed that Mr Preston’s PRE put him at a substantial disadvantage compared with people who were not disabled. However, it concluded that E.on did not know and nor could it have reasonably known of this disadvantage until October 2017, when Mr Preston was already on sick leave. There was, therefore, no duty on the company to make reasonable adjustments before that time. Atter that point, it had done all that could reasonably be expected of it.
The tribunal also found that Mr Preston was ultimately summarily dismissed because of his conduct in refusing to engage with the measures put in place to secure his return to work. As such, the company was justified in dismissing him in order to achieve its legitimate aim of efficient absence management.
Mr Preston appealed, arguing that the company had known about his PRE prior to October 2017.
The EAT rejected that argument, holding instead that the tribunal had correctly approached the evidence regarding the impact of the impairment of PRE. Likewise, the tribunal had been entitled to find that his sickness absence was unrelated to his PRE but was instead the result of stress.
As for the finding that the unfavourable treatment (the dismissal) was justified, the tribunal was entitled to conclude that it was a proportionate means of achieving the company’s legitimate aim, given his continued refusal to respond to reasonable management requests in circumstances in which OH had advised that he was fit to return to work and all reasonable adjustments had been made to enable him to do so.