EAT: HHJ Tayler, UKEAT/0253/20/AT, 29 July 2021

The decision of the EAT in this case provides a useful reminder of the proper approach to the PCP in reasonable adjustment claims. EAT (judge James Tayler, sitting alone) ruled that an employment tribunal had erred in law in rejecting the claimant’s attempt to rely on, as a PCP, a Management of Absence Policy which included discretion which would have permitted, amongst other steps, the claimant’s redeployment to an alternative role. The Tribunal had ruled that the application of the policy to the claimant did not constitute the application of a PCP that placed her at a substantial disadvantage in comparison with non-disabled persons.

Judge Tayler described as “surprising” the proposition that “a claimant who was unfit for her role and asserted that, with appropriate assistance such as any necessary training, she could be placed into an alternative role, should fail even to get to the stage of assessing whether the respondent was required to make a reasonable adjustment because no workable PCP was asserted”, relying on the decision of the House of Lords in Archibald v Fife Council [2004] UKHL 32, [2004] ICR 954 to state that “Providing an alternative role for an employee unfit to undertake the duties of their current role is a paradigm example of a reasonable adjustment”.
Judge Tayler stated at §18 that “Unlike claims about adjustments to physical features or the provision of auxiliary aids a “first requirement” reasonable adjustments claim must start with the identification of the appropriate PCP” (citing Environment Agency v Rowan UKEAT/0060/07, [2008] ICR 218 §27) and that this caused difficulties both for unrepresented litigants and, on occasion for lawyers:

[18] … However, it is clear that PCPs are not designed to be traps for the unwary and a practical and realistic approach should be adopted at the case management stage to identify a workable PCP which should not thereafter be over-fastidiously interpreted with the result that a properly arguable reasonable adjustments claim cannot be advanced, particularly when dealing with litigants in person [citing Carreras v United First Partners Research UKEAT/0266/15/RN and the EHRC’s Code of Practice]…
[19] Where a party is represented the employment tribunal can expect the PCP to be properly identified and so representatives should always consider how the PCP 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 the PCP. But whatever PCP is finalised it should be given a reasonably generous reading when determining the claim.

In the instant case the PCP in question was, as above, the application of the employer’s Management of Absence Policy, it being said that the policy placed the claimant at an increased risk of dismissal by comparison with a non-disabled person. The EAT referred to Griffiths v Secretary of State for Work and Pensions [2015] EWCA Civ 1265, [2016] IRLR 216 which concerned a policy which had permitted the employer to discount a period of disability-related absence and vary trigger points in the case of a disabled employee, though the discretion had not been exercised in the claimant’s case. An employment tribunal had ruled that the duty to make reasonable adjustments had not arisen because a non-disabled person with a similar level of absence would have been treated in the same way and the EAT had refused the claimant’s appeal. The Court of Appeal disagreed. It ruled that, in assessing whether the claimant had been placed at a substantial disadvantage, her treatment should have been compared with that of a non-disabled employee who did not have an increased likelihood of absence from work on ill-health grounds. On this analysis the claimant had been substantially disadvantaged by the policy as it had been applied to her. The Court of Appeal also emphasised that it was the application of the policy to the claimant which was the PCP rather than the policy itself (which included a discretion which could have been used to ameliorate any disadvantage to the claimant, but was not in that case).

Having considered the decision in Griffiths Judge Tayler accepted that the claimant had relied in the instant case on the application of the policy rather than the policy itself (§44), and that the PCP had been correctly put. Having said this, he went on to find on accept on the facts found by the tribunal that the employer had in fact taken all steps that could reasonably have been expected of it, and had so discharged the duty to make reasonable adjustments.

Claimant: Matt Jackson, instructed by Newport Citizens Advice

Respondent: Julian Allsop, instructed by Hugh James Solicitors, Cardiff

post modified 15 January 2022