Mark Shulman, Consultant Solicitor at Keystone Law

DISABILITY DISCRIMINATION
**Equality Act 2010
**Sections 20 and 21 of the Equality Act 2010 ("EqA 2010") set out the framework for the duty to make reasonable adjustments. So far as relevant to this article, the section 20 duty comprises:

"...
(3) …a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

**Provision criterion or practice
**Can an expectation amount to a "provision, criterion or practice" ("PCP") for section 20 EqA purposes? Yes, said the EAT in [Carreras v United First Partners Research ]()UKEAT/0266/15/RN.

Background
The Claimant was employed by an independent brokerage and research firm as an Analyst. He worked long hours, often until 11pm, until he had a serious biking accident. The Respondent was aware of the Claimant's physical symptoms: dizziness, fatigue and headaches, difficulties concentrating and focusing, as well as difficulty working in the evenings.

Soon after the accident, he worked until 6.30pm or 7pm but after that initial period, the Claimant complained that he was forced to work later hours by the Respondent. The Claimant contended he was put under pressure to work late and he was concerned that if he did not do so, he might be made redundant or lose his bonus. Matters came to a head when the Claimant emailed his employer objecting to working late in the evenings because of his tiredness. He eventually resigned following an argument between himself and one of the owners of the business.

He claimed disability discrimination (and unfair constructive dismissal) at the ET. However, both claims were dismissed, the disability claim on the basis that the Respondent had not failed to make a reasonable adjustment pursuant to section 20 of the EqA because there was no PCP of a requirement that the Claimant had to work late hours.

Broad or narrow approach?
On appeal, the Claimant contended that the ET's approach was an exercise in semantics, seeking to distinguish a requirement to work late from an assumption or an expectation. It was suggested that an expectation could amount to a  requirement and the ET had therefore failed to have any regard to legal principle or provide any explanation as to why it had adopted such a narrow view in considering whether there was a PCP.

Had the ET been correct in its narrow approach? No, said the EAT, agreeing with the Claimant. In considering the statutory definition, the protective nature of the legislation means a liberal rather than an overly technical or narrow approach was to be adopted (see Langstaff J, in Nottingham City Transport Ltd v Harvey ; that approach was consistent with the EqA Code of Practice on Employment, which states (at paragraph 6.10) that the phrase "provision, criterion or practice" should be "widely construed".

It was important to be clear as to how the PCP is to be described in any particular case. At the ET the Claimant had argued that the PCP was requiring him to work "unsuitable hours". Whilst the ET had not accepted the Claimant was "forced" (as in coerced) to work the later hours, it had also not accepted he was simply "requested" to do so. What it found was that things progressed from totally open requests to an assumption that the Claimant would be working one or two later nights; asking when - not if - he would be working the later hours.

Although a "requirement" may be taken to imply some element of compulsion, the EAT considered that the term was not limited to that and an expectation or assumption placed upon an employee could suffice. Therefore, the ET's approach had been overly technical. Had it applied the correct "real world view", it is apparent that the ET's findings confirmed what the Claimant had alleged (i.e. that the Respondent did not continue open requests to the Claimant, but asked when he would work later hours).

Accordingly, the case was remitted for findings on the nature and effect of the disadvantage suffered by the Claimant and as to the question of any reasonable adjustments required.

Reasonable adjustments
Could the proper investigation of an employee's grievances and provision of an outcome to enable the employee to return to a safe and discrimination free environment at work amount to a reasonable adjustment? Yes, said the EAT in [Lamb v The Business Academy Bexley ]()UKEAT/0226/15/JOJ.

Background
The Claimant was employed by the Business Academy Bexley ("the Academy") as a teacher. She made a complaint of bullying and at a meeting in March 2012, explained her grievance.

However, the grievance process became very protracted. An investigation led to a grievance report which was "relatively brief ". Although a supplementary report was prepared, it failed to achieve the clarity that had been hoped for. The Academy's Chief Executive informed the Claimant in July 2012 that she thought the Claimant's concerns had not been fully investigated or understood. There was then correspondence between her and the Academy about the need for the Claimant to put her grievance in writing (as this had not been done) so that the Academy could investigate it.

Just before the beginning of the new academic year in September 2012 the Claimant was signed off sick and did not attend work (and remained absent from then onwards on account of reactive depression and post-traumatic stress disorder until her employment terminated in in March 2014).

In a letter dated 11 September 2012, the Academy's HR Manager explained that he had been asked to investigate the Claimant's grievance and sent her a copy of the notes of a meeting held in the previous March, asking the Claimant to confirm whether those matters reflected her grievance.

The Claimant submitted her written grievance in October 2012 and the grievance hearing took place in January 2013. The grievance was not upheld although the Academy regretted the time it had taken to reach a conclusion. The Claimant's grievance appeal was also rejected, although not until May 2013.

Was there a PCP?
In her disability discrimination claim, the Claimant alleged that there was a PCP in that she "was required to return to work from her sickness absence during the period September 2012 to December 2013 without a proper and fair investigation into her grievances". She also claimed that in that context, it would have been a reasonable adjustment to "investigate the grievances properly and provide an outcome to enable [her] to return to a safe and discrimination free environment at work".

The ET rejected her claim. It decided that:

* there had been no PCP because there had been no requirement for the Claimant to return to work in September 2012 (emphasis added); * she had submitted a medical certificate and the Academy had accepted that; * it was difficult to see how the situation would have placed the Claimant at a substantial disadvantage. If a person was required to return to work without their grievance being looked at properly or fairly, that would place anyone, disabled or not, at a substantial disadvantage.

Even if there was a PCP as suggested by the Claimant, insofar as the reasonable adjustment she wanted was to investigate the grievance properly and provide an outcome to enable to her to return to a safe and discrimination-free environment at work, the ET was satisfied that that was what the Academy had done.

On appeal to the EAT, the Claimant contended that the ET had limited itself to the position only in September 2012, when the PCP relied on by her related to a period extending beyond that until December 2013.

Substantial disadvantage
Further, she argued that the ET had failed to properly consider the question of substantial disadvantage. It was insufficient to ask the question: would anyone, whether disabled or not, have been substantially disadvantaged? The correct question was whether in comparison with people who are not disabled, someone with the Claimant's disability would have been substantially disadvantaged.

Identifying the PCP/disadvantage suffered
The EAT confirmed that it is critical to identify the relevant PCP and the precise nature of the disadvantage by comparison with non-disabled people (Griffiths v Secretary of State for Work & Pensions. The fact that an able-bodied and a disabled employee are treated equally and are subject to the same disadvantage when absent for the same period of time did not mean that there can be no disadvantage if the PCP bites harder on the disabled employee than it does on the able-bodied.

The phrase "PCP" is not defined in the legislation, but is to be construed broadly, having regard to the statute's purpose of eliminating discrimination. It includes formal and informal practices, policies and arrangements and may in certain cases include one-off decisions.

The Claimant's pleaded case was that there was a requirement to return to work over a lengthy period (September 2012 through to December 2013) in the absence of a proper, fair investigation of her grievance. The practice relied on by the Claimant was repeated:

* first in the grievance process that took some four months from complaint to a potential outcome; and * then again in relation to the further investigation where a similar delay ensued both at the investigation stage and again at the appeal stage.

Even if the Claimant had some responsibility for part of that delay, it seemed to the EAT that the employer was in charge and responsible for the grievance process and for the extent of the delay. The Academy's practice of delay in delivering a timely grievance outcome was capable of being a PCP for these purposes.

The EAT stated that whilst the Claimant was not contending that she was physically forced to return to work during September 2012 or in the period that followed, it was apparent that she had felt pressured to return - perhaps because she was on reduced pay and in circumstances where her sick pay would come to an end in April 2013.

*Wrong PCP
*Had the ET correctly considered the PCP advanced by the Claimant? No, said the EAT. The ET had impermissibly changed the PCP to a narrower one (i.e. that she was required to return to work in September 2012 without a proper and fair investigation of her grievance). The EAT thought it was apparent from its reasons that the ET had understood the PCP to involve a one-off decision requiring the Claimant to return to work in September 2012.

Further, in changing the PCP in this way, it was impossible to decide whether the PCP alleged by the Claimant placed her at a substantial disadvantage. Accordingly, the ET's error meant it failed to address the extent to which the PCP contended for by the Claimant placed her at a substantial disadvantage. If the PCP operated more harshly on the Claimant as a result of her mental health disability, (by exacerbating her condition and/or making it harder for her to return to work), then the duty of making reasonable adjustments would be engaged. That was not addressed by the ET and the ET had impermissibly recast the PCP and made findings on the issue as recast. That was an error of law.

Issues on remission
Therefore, the appeal was allowed and the matter remitted for consideration by the ET. Given the very strong conclusions by the original ET against the Claimant on every issue raised, the EAT thought that notwithstanding the additional cost and inconvenience, the overriding objective would be best served by remitting the case to a fresh ET to deal with the question of reasonable adjustments.

As the previous findings by the ET in relation to substantial disadvantage could not stand (having applied the wrong PCP), it would be important to consider (i) the nature and extent of the substantial disadvantage relied on by the Claimant, and (ii) to assess the reasonableness of the adjustment claimed in that context. An employer could not make an objective assessment of the reasonableness of proposed adjustments unless they appreciated the nature and extent of the substantial disadvantage imposed by the PCP.

Legal proceedings - reasonable adjustments
What duty does an ET have to make reasonable adjustments for a disabled Claimant so as to ensure access to, and participation in, ET proceedings? The EAT explained the parameters in [Rackham v NHS Professionals Ltd ]()UKEAT/0110/15/LA.

*Background
*The Claimant (who suffered from Asperger's syndrome and anxiety), was employed by the Respondent to provide services to a local NHS Trust. His employment was terminated and he brought various claims against the Trust. An EJ decided at a Preliminary Hearing that there should be a report from an expert (but not a GP) as to the nature of his disability and adjustments it would be reasonable to make to enable participation in a subsequent Preliminary Hearing. However, the parties were reluctant to bear the cost of such a report and it was instead agreed that the Claimant would release all relevant medical records. These records resolved the issue of disability and adjustments for the hearing were thereafter agreed between the parties and endorsed by the Claimant's GP.

At the ET hearing, the Respondent offered an additional adjustment and provided in advance a written list of questions for cross-examination of the Claimant. The Claimant then applied to answer the questions in writing and at home. He further sought a postponement to obtain an expert's report on appropriate adjustments, but the application was refused. The Claimant appealed the EJ's refusal.

*Equal Treatment Bench Book
It was contended on appeal that the EJ had failed to apply the Equal Treatment Bench Book which, as a matter of law, he should have done by virtue of the United Nations Convention on the Rights of Persons with Disabilities. That Convention had become adopted as an additional Treaty of the European Union by virtue of the European Communities Act 1972* and therefore had the status of European Union law. In particular it was alleged that under Chapter 7, ("Mental disabilities, specific learning difficulties and mental capacity"), the ET had not observed paragraph 19, which reads:

"19. If a disability is indicated on court or tribunal pro-formas both the administration and the judiciary should act on this information, requesting further documentation or arranging a directions hearing to consider requirements arising out of special needs. There may be a duty to make reasonable adjustments under the Equality Act 2010."

Duty to make adjustments
The EAT did not think it could sensibly be disputed that an ET, as an organ of the State, had a duty to make reasonable adjustments to accommodate the disabilities of the Claimant. Such a duty may be through the operation of the United Nations Convention, the Equal Treatment Directive or it may arise simply as an expression of common-law fairness. It was undisputed between the parties that there was a duty to make reasonable adjustments.

However, the question for the EAT was as to the adequacy of the steps the ET took either in making adjustments, or in considering whether to seek further information. But as the EAT reminded us, the issue was not whether it would have taken the same steps as the ET had done; the question was whether the EJ in deciding as he did, had committed an error of law.

At one end of the spectrum, there would be some cases in which it was plain that an ET would not really be exercising a case management discretion in order to secure fairness. For example, where Claimants, witnesses or Respondents have no English language, an interpreter would be needed. If they were deaf or dumb, they would need someone to assist them. Without these facilities, they simply could not get access to justice.

Substantial unfairness
The question to be asked was "whether there was any substantial unfairness to the Claimant in the event"? But fairness was not to be viewed in isolation, (viewing the Claimant's case alone), but considering the overall picture where there were two parties. Though suffering from the effects of Asperger's and though his IQ was 67, he had as the EJ observed, been in employment and had been able to conduct a case in the first-tier Tribunal (in another matter). This was therefore not a case where the Claimant was challenged in such a way that he lacked mental capacity or was very close to lacking it.

The Claimant had agreed to the adjustments proposed by the Respondent and had previously made a request for very similar adjustments. Therefore, the EAT thought that the EJ was entitled to regard his agreement as evidence that those adjustments were appropriate. The ET was also entitled to take into account that the Claimant's GP endorsed those adjustments. The EJ had not simply paid lip service to the Equal Treatment Bench Book and the EAT could not identify any specific provision in the Bench Book which the EJ had not addressed.

Even if an expert had been instructed, there was no particular reason to think they would have identified a reasonable adjustment which no-one else in the case (especially the Claimant) had previously spotted. There was a substantial amount of evidence to support the EJ's conclusion that the adjustments would be capable of securing a fair trial and there was no error of law in the approach of the EJ.

Review of adjustments and guidance
There was no complaint that the ET had failed to keep the adjustments under review but the EAT took the opportunity to comment that it expected ETs to do so.

Although the EAT declined to give general guidance for future cases (preferring instead to rely on the Equal Treatment Bench Book), it did make four points:

* Each case is individual. What is reasonable must be tailored not to some general idea of what a person with a particular disability needs, but what the individual before the ET requires; * Considerable value should be placed upon the integrity and autonomy of the individual. If a person entitled to make a decision about the conduct of their case makes a decision, it is not in general for any court to second-guess that decision and to make it in a manner which patronises that person; * There might need to be preliminary consideration of the procedure to apply ("ground rules hearings"). It may for instance consider the ground rules for the hearing and the adjustments that it might be necessary to make; and * There was considerable value in taking these steps quickly. In almost any case speed was important, but particularly so in disability claims where it was in everyone's interests to resolve disputes as early as possible.

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Mark Shulman is a Consultant Solicitor with Keystone Law and an accredited workplace and employment mediator. His blog on new employment legislation can be found here.