Ms. Pavandeep Hundal, an agency contract worker for South Gloucestershire Council, suffered from endometriosis, a condition recognised as a disability. Following a period of disability-related sick leave, her contract was terminated. The Employment Tribunal initially found that this termination constituted direct disability discrimination under s13 of the Equality Act 2010 and discrimination arising from disability under s15 of the same Act. The Tribunal concluded that the termination was not a proportionate means of achieving the legitimate aim of efficient service management, as the Council had not considered reasonable adjustments that could have supported Ms. Hundal in her role.
Employment Appeal Tribunal (EAT) decision
HHJ Tayler upheld the Tribunal’s decision regarding the s15 claim. He emphasised the importance of considering reasonable adjustments when assessing whether an employer's actions are objectively justified under s15 of the Equality Act 2010. The EAT clarified that the possibility of making reasonable adjustments is relevant to the justification analysis, even if a failure to make such adjustments has not been successfully claimed.
Key points from the judgment
Reasonable adjustments and justification:
The EAT noted that the Employment Tribunal was correct in considering potential adjustments that could have helped Ms. Hundal achieve better attendance, such as working from home or spreading her 4-day week over 5 days. These adjustments were not attempted by the Council.
The Tribunal was also entitled to consider the possibility of occupational health support, which was not explored because Ms. Hundal was an agency worker. This oversight was significant in determining that the termination was not a proportionate means of achieving the legitimate aim.
Objective justification:
The EAT highlighted that the failure to make reasonable adjustments can be relevant to the assessment of whether the treatment was objectively justified. This is in line with the principles derived from general authorities, which state that the possibility of steps to assist the claimant is relevant to whether the respondent has established that the termination was proportionate.
The EAT referenced the City of York Council v Grosset [2018] EWCA Civ 1105 case, which supports the view that a link between the failure to make reasonable adjustments and the unfavourable treatment can be crucial in determining justification under s15.
Practical implications for employers
Proactive consideration of adjustments: Employers must proactively consider and implement reasonable adjustments to support disabled employees. This includes exploring all potential adjustments, even if the employee is an agency worker.
Documentation and support: Employers should document all efforts to support disabled employees, including referrals to occupational health and adjustments to work patterns.
Training and awareness: Training for managers on the importance of reasonable adjustments and the legal implications of failing to consider them is essential.
Additional considerations
Impact on other employees: While making reasonable adjustments, employers should also consider the impact on other employees. However, this should not be used as a justification for failing to make necessary adjustments.
Case-by-case basis: The reasonableness of adjustments should be assessed on a case-by-case basis, taking into account the specific circumstances and needs of the disabled employee.
Further reading
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