Alternative Text Posted by Seán McHugh

An employer had failed to make reasonable adjustments where there was a real chance, but no guarantee, that the adjustment would work.

In South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley, UKEAT/0341/15/DM Mrs. Billingsley (the “Claimant”) worked as a data input clerk.  She suffers from dyspraxia, a disability, which made her more prone to making errors.  The Trust commissioned a report into her performance which recommended that it provide some technical aids, and 50-hours of specialist tuition.  These recommendations were not implemented. The Trust began monitoring the Claimant’s error rate and at informal performance meetings Mrs. Billingsley asked for the specialist training to begin.  Eventually (nearly three years after the initial recommendation) the technical aids and 20-hours of specialist training were provided.  Her performance improved markedly.  However, when her supervisor went on maternity leave her error rate rose due to, she claimed, the change in her supervisor.

The Trust began a formal review procedure at the end of which it dismissed her on grounds of capability.  Consequently, the Claimant claimed disability discrimination.

The employment tribunal ruled that the employer had failed to make two reasonable adjustments: providing technical aids in good time (and in any event well before the monitoring of her performance began), and providing the full recommended number of hours of specialist training (50-hours, rather than 20-hours).   It had done too little too late. There was a real chance that if those adjustments had been made, the Claimant would not have been dismissed.

The Trust appealed, arguing that the tribunal should not have considered whether there was a real chance that these adjustments would have avoided dismissal: that an adjustment is only a reasonable one if it will work.  And if there is only a chance that it will work, then it is not a reasonable one which an employer has to make.

The Employment Appeal Tribunal (“EAT”) disagreed with the Trust’s argument and upheld the employment tribunal’s decision.  The EAT held that it is not necessary for an employee to show that the adjustment they propose would be completely effective to avoid the disadvantage; it is sufficient to show that there is a chance that it will do so.  Whether an adjustment is reasonable is a question of judgment and evaluation for the tribunal, taking into account a range of factors, including – but not limited to – chances of success.

If a measure proposed by an employee stands a very small chance of avoiding the unfavourable treatment but was beyond the financial capacity of the employer, a tribunal would be entitled to conclude that it was not a reasonable adjustment.

However, in the case of a large organisation, where a proposed adjustment could be implemented without imposing an unreasonable administrative or financial burden on the employer then the obligation to take it may arise even if the chance of avoiding the unfavourable treatment was very far from a certainty.

Food for thought

If there is a chance that a proposed adjustment will work, an employer should consider making it. In addition to the prospects of success, a tribunal considering whether an adjustment is a reasonable one for an employer to make will take into account the size of the employer and its resources, the practicability of the proposed step and the cost of making the adjustment (see the case of Cordell v Foreign & Commonwealth Office UKEAT/0016/11/SM which considered the issue of the cost of making adjustments in more detail).  The EHRC Code of Practice makes it clear that it may still be reasonable to make an adjustment, even if success is not guaranteed.  The uncertainty of success is simply one of the factors to weigh in the balance.

This case serves as a reminder to employers to make reasonable adjustments during a performance management process if not before, and in any event, in a timely fashion, and that adjustments should be given a chance to work.  An employer should ensure that the standards of performance required are realistic and achievable.

It also neatly summarises the extent of the duty to make reasonable adjustments.  An employer should consider adjustments even if there is only a possibility that the adjustment will remove the disadvantage (resources permitting).  Failing to make all reasonable adjustments is likely to render a dismissal unfair.

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