Griffiths v The Secretary Of State For Work And Pensions (Disability Discrimination : Reasonable adjustments) [2014] UKEAT 0372_13_1505

EAT
Griffiths v The Secretary Of State For Work And Pensions (Disability Discrimination : Reasonable adjustments)
[2014] UKEAT 0372_13_1505 · 2014-05-15
[15]The duty, given that disadvantage and the fact that it is substantial are both identified, is to take such steps as are reasonable to prevent the provision, criterion or practice (which will, of course, have been identified for this purpose) having the proscribed effect - that is the effect of creating that disadvantage when compared to those who are not disabled. It is not, therefore, a section which obliges an employer to take reasonable steps to assist a disabled person or to help the disabled person overcome the effects of their disability, except insofar as the terms to which we have referred permit it.[16]The fact that this requires in particular the identification of the provision, criterion or practice concerned and the precise nature of the disadvantage which it creates by comparison with those who are non-disabled, was set out clearly by this Tribunal in Environment Agency v Rowan [2008] ICR 218 at paragraph 27. That guidance is worth restating:
‘[…] an Employment Tribunal considering a claim that an employer has discriminated against an employee pursuant to Section 3A(2) of the Act by failing to comply with Section 4A duty must identify: (a) the provision, criterion or practice applied by or on behalf of an employer, or (b) the physical feature of premises occupied by the employer (that, of course, is not relevant to the present case), (c) the identity of non-disabled comparators (where appropriate) and (d) the nature and extent of the substantial disadvantage suffered by the Claimant.’
Later in the same paragraph the Tribunal continues to say:
‘In our opinion an Employment Tribunal cannot properly make findings of a failure to make reasonable adjustments under Sections 3A(2) and 4A(1) without going through that process. Unless the Employment Tribunal has identified the four matters we have set out above …..’
We interpose to say that of course it is not in every case that all four matters need to be identified but certainly what must be identified is (a) and (d). For the purpose of the comparison the Tribunal must be able to identify the persons by reference to whom the provision, criterion or practice, either in its presence or its application, is said to place the disabled person concerned at a substantial disadvantage. Disadvantage is necessarily relative. We continue with the paragraph from Rowan :
‘…..it cannot go on to judge if any proposed adjustment is reasonable. It is simply unable to say what adjustments were reasonable to prevent the provision, criterion or practice, or feature, placing the disabled person concerned at a substantial disadvantage.’
[17]Those words were adopted as representing the proper approach to applying the wording of the statute by this Tribunal under the presidency of Cox J in Fareham College Corporation v Walters [2009] IRLR 991 at paragraph 55.

(c) Cox J said:

‘The Tribunal was enjoined to specify the identity of non-disabled comparators where appropriate to do so.’
Those words giving a clear indication that it may not always be necessary to identify the non-disabled comparators, she went on to say:
‘In many cases the facts will speak for themselves and the identity of the non-disabled comparators will be clearly discernible from the provision, criterion or practice found to be in play.’
[18]It seems to be that what she meant was that where it is plain from looking at the terms of a provision, criterion or practice that it affects both those who are disabled and those who are not, then the group with whom comparison should be made is identified simply by reference to the provision, criterion or practice itself. (It is those to whom the provision, criterion or practice applies who are not disabled by the relevant disability.) This is not, of course, to say that comparators do not have to be identified because the wording of the statute: section 4A(1) requires such a comparison .” 29. Having thus identified the correct approach, the EAT applied it in the case before them, being one in which an Employment Tribunal had found “substantial disadvantage” made out. The judgment continues: “38. If one looks here for the approach enjoined by Environment Agency v Rowan and endorsed by Fareham , it is absent. There is no statement that we can see, nor one to which Mr Morton was able to point us, as to the nature of the substantial disadvantage which the provision or practice is said to have given rise. Unless that was identified, then logically one simply could not know whether any adjustment was reasonable because it would have to have a practical effect on the disadvantage. For that, one needs to know what the disadvantage is. Here it appears to have been assumed but not stated: but it is not self evident.[39]In particular, if one steps back from the minutiae of the judgment this was the position. Everyone who worked for RBS was subject to the terms of a sickness absence policy. On its face no one, whether disabled or otherwise, was advantaged or disadvantaged compared to any other because they were all subject to the same policy. To the extent that someone who was disabled might suffer further periods of sickness than the non-disabled, the sickness policy provided in the Claimant's case that she should continue to receive full pay.[40]It is difficult, therefore, to see that the sickness absence procedure itself could constitute a disadvantage to the Claimant. If she was likely to be more absent than someone not suffering from her relevant disability she would be benefited rather than disadvantaged when compared. The position is further complicated by the evidence which there was before the Tribunal which was, and here we summarise, to the effect that in most cases the employer would apply the trigger points as the policy suggested. However, in some - and in particular those were cases where there was a chronic or long-term disability - the trigger points might be "flexed" (i.e. relaxed). ”30. As we have seen, the majority of the Tribunal in the instant case thought that they were correctly applying Ashton to the facts before them. They were only able to identify a policy which at least applied in the same way to all employees and that, in its terms, made special further provision for those with disabilities.31. It will be recalled that the challenge to that finding not only suggests that the majority failed to apply Ashton but that they reached a decision inconsistent with the Court of Appeal in O’Hanlon . We note that at the end of its judgment in Ashton the EAT said this at [79] with reference to O’Hanlon : “We then have to ask what the consequence must be. It seems plain to us, first, that there is here no tenable argument which would support a claim that there was a failure to make a reasonable adjustment. That is because, in the words of the statute, it has to be shown that the Claimant is at a substantial disadvantage in comparison with persons who are not disabled. The O'Hanlon case demonstrates the difficulties for a person who is claiming to have been disadvantaged by a failure to continue to pay sick pay in circumstances in which the scheme would cut off payment to those who are not disabled in establishing that there is any disadvantage at all (let alone, in this case, an advantage by extending the trigger points as happened). On any arguable view of the facts this is not one of those unusual cases which might constitute an arguable exception, where those difficulties might be surmounted.”32. Ms Tether submitted that the EAT was not in that passage saying that the sorts of attendance policies in play in this case and in Ashton could never result in a substantial disadvantage to a disabled person. We agree with that submission as far as it goes but we are unable to accept that it follows that the majority in the instant case must have erred in their consideration and application of Ashton and O’Hanlon .33. Far from approaching the matter contrary to domestic judicial authority, we conclude that the majority of the Employment Tribunal was faithfully applying it. As Mr Leach rightly submitted, the cases show that the proper comparator in Ms Griffiths’ case is a non-disabled person absent for sickness reasons for the same amount of time but not for disability-related sickness. If a claimant is treated at least as well as such comparators s/he cannot be at a disadvantage let alone a ‘substantial’ disadvantage. He relied not only on Ashton but also on two subsequent and relatively recent decisions of the EAT to the same effect: Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley [2012] EqLR 634 at [72]-[80] and Hillingdon LBC v Bailey [2013] EqLR 729 at [21] – [26].34. Ms Tether countered with a reliance on the ECJ’s decision in the Ring case. In particular she took us to those parts of the European Court’s judgment dealing with the “disadvantage” that the Court identified (at page 585) as flowing to disabled persons who were liable to more ready termination of their employment on account of periods of sickness absence. She submitted that the ECJ’s approach to the Directive required that, where one had a seemingly neutral PCP, an Employment Tribunal had to see whether it created a disadvantage to the particular disabled person. For our part, we accept Mr Leach’s submission that this reliance on Ring involves a misreading of the ECJ’s judgment. The passages on which Ms Tether was primarily relying turn on the parts of the Directive that in our domestic law are transposed as provisions addressing indirect discrimination. They do not assist on the question whether an employee has been subject to a “substantial disadvantage” by a PCP in the different context of the making of a reasonable adjustment.35. It follows that we are not satisfied that the majority in the instant case erred in the respects suggested by Ms Tether or at all. The appeal accordingly fails. The reasonableness point36. Although the disposal of the duty point is determinative of the appeal (as it was of the claim before the Tribunal) we heard full argument on the question of whether, if a duty had been owed, the majority of the Tribunal had been right to conclude that the adjustments sought went beyond what was reasonable. It will be recalled that what Ms Griffiths was seeking was the one-off retrospective increase of the ‘Consideration Point’ to 62 days or thereabouts (so that the warning based on her 62 day absence in early 2011 would be withdrawn) and a future increase in the ‘Consideration Points’ so that any future disability-related absence would not trigger the Policy’s sanctions.37. The majority found as follows on the reasonableness of those proposed adjustments (at paragraphs [47]-[48]): “…the adjustments sought would inevitably rely upon the removal of almost a three month period of 66 days and then separately to allow a buffer to be continually in place which would be continually a factor in preventing the consideration point arising. Further, the majority do not think that the one-off exceptional circumstances category would apply given the condition of the claimant and the medical report as to the likelihood of continuing disability causing absence. We agree [with] the respondent’s submissions that this would be in practice a perpetual extension of sickness absence not to assist the claimant to remain at work though still employed.” whereas the minority would have held the contrary (see paragraph [52]):38. Self-evidently, the evaluation and assessment of what would or would not have been ‘reasonable’ is a matter for the first instance Tribunal. The fact that the decision was reached by a majority, rather than unanimously, does not itself disclose any error of law.39. Ms Tether did not put her case in that way. Rather she contended that, on the “one-off” adjustment, the majority of the Tribunal had failed to address the point - picked up by the minority - that the evidence was to the effect that this particular period of absence had been a more extended one because it was the time at which her condition was first diagnosed and suitable treatment put into place. Further, that on the “future” adjustment, the majority had wrongly categorised or described the adjustment as necessarily involving an indefinite uplift of the Consideration Point, however long the period of disability-related absence may have been. The minority had correctly identified that an uplift from 8 to 12 (or perhaps 20) days was what was being sought and that although that represented, at minimum, a 50% uplift it was modest in its impact on the Respondent while significant in its impact on Ms Griffiths by reducing worry and stress which would exacerbate her disabling condition. The submission was that the majority had failed to grasp the case for Ms Griffiths as put to them. 40. Mr Leach submitted to us, as he had to the Tribunal, that the reasonable adjustments envisaged by the statute were those that enable a disabled employee to return to work or carry out their work. Both the adjustments sought here were about the treatment of past and future absence from work and thus completely unrelated to the statutory objectives. In support of that proposition he took us to O’Hanlon (above) and Salford Primary Care Trust v Smith [2011] EqLR 1119. Accordingly, the ‘adjustments’ proposed could not amount to reasonable adjustments as a matter of law. Alternatively, the majority of the Tribunal had been entitled to find, on the facts, that neither of them was ‘reasonable’. 41. We considered the arguments on this aspect of the appeal more finely balanced but had we been required to determine the point (which is strictly unnecessary) we would have rejected the appeal on this ground also. We are unable to accept that the majority did actually fail to grasp the way that the case on adjustments was being put. We accept Mr Leach’s submission that, on that case and on the relevant facts, the adjustments sought were not within the scope of the statute. Further, the majority had been entitled to find, as a matter of fact, that neither was ‘reasonable’. 42. It follows that, despite the helpful oral and written submissions advanced with sensible moderation by Ms Tether, this appeal fails.