In this article...

• The background
• The facts
• The decision
• What does it mean for me?

Is an employer required, as part of the duty to make reasonable adjustments, to take steps such as consulting the employee about possible adjustments or obtaining a medical report? David Widdowson examines the EAT’s latest decision on this point.

Section 4A of the Disability Discrimination Act 1995 (DDA) places an employer under a duty to make reasonable adjustments where a disabled employee is placed at a substantial disadvantage by a provision, criterion or practice applied by the employer or by any physical feature of the employer’s premises. The kinds of adjustments envisaged are necessarily fact-specific but may include reallocating the disabled person’s duties, altering his or her hours of work or acquiring special equipment.

Recent case law has focused on whether an employer needs to carry out a detailed assessment of the possible adjustments that may be required, or consult with the employee in question, before implementing the necessary steps.

The background

In Mid Staffordshire General Hospitals NHS Trust v Cambridge the EAT held that an employer’s failure to make an initial assessment to decide what steps it would be reasonable to take to prevent a disabled employee being disadvantaged amounted, in itself, to a breach of the duty to make reasonable adjustments.

That approach was followed in Southampton City College v Randall, in which the EAT decided that an employer’s failure to consider whether voice amplification would assist a lecturer who had developed a voice condition amounted to a breach of the duty to make reasonable adjustments – even though there was no evidence to suggest that such an adjustment would have been effective. The EAT took the view that a proper assessment of what is required to eliminate the disabled person’s disadvantage is a necessary part of the duty.

In Tarbuck v Sainsbury’s Supermarkets Ltd, however, another division of the EAT held that an employer is not under a separate and distinct duty to consult with the disabled employee about the steps that may be needed. According to the EAT, the only issue is whether, objectively, the employer has made the necessary adjustments.

The facts

The EAT has recently revisited this issue in the case of Spence v Intype Libra Ltd. Mr Spence was an IT manager who suffered severe arm pain following a suspected vascular event. During his sickness absence there were extensive discussions concerning his possible return to work and in what capacity, but no resolution was reached and after a year’s absence he was dismissed.

Mr Spence argued that his employer had failed to make a reasonable adjustment by not obtaining and consulting on an up-to-date medical report before dismissing him. The tribunal rejected the claim, holding in the light of the Tarbuck case that the failure to take that step did not of itself amount to a failure to make reasonable adjustments. Mr Spence appealed to the EAT.

The decision

The EAT took the view that there was no basis for making a distinction between an employer’s failure to consult a disabled employee – as in Tarbuck – and a failure to obtain up-to-date medical information. An appropriate assessment of the employee’s condition may involve obtaining information from the employee, consulting with him or her, and obtaining medical reports. These are all part of the procedures which an employer will sensibly adopt when determining what adjustments, if any, are reasonable. However, if a failure to consult cannot of itself constitute a breach of the duty, then neither can a failure to obtain a medical report.

Although the value and significance of an employer carrying out an assessment was obvious, the only issue in this case was whether the failure to do so could constitute a breach of the duty to make reasonable adjustments. The EAT considered that it could not and that it would distort the language of the relevant provisions to hold otherwise.

In the EAT’s view, this conclusion did not undermine the protection afforded by the DDA. What section 4A DDA envisages is that steps will be taken which will have the practical consequence of preventing or mitigating the difficulties faced by a disabled person at work. It is not concerned with the process of determining which steps should be taken. The issue is whether the necessary reasonable adjustment has been made; whether by luck or judgment is immaterial.

Accordingly, the appeal was dismissed.

What does it mean for me?

This latest ruling by the EAT suggests that a failure to consult an employee or to obtain a medical report cannot, of itself, amount to a breach of the duty to make reasonable adjustments. Given that there are now a number of conflicting decisions on this important point, the EAT gave Mr Spence leave to appeal to the Court of Appeal. It is understood that the Disability Rights Commission will be seeking to intervene in the appeal, as it believes this case and the Tarbuck case to be wrongly decided.

During the course of its judgment, the EAT acknowledged that it will always be good practice for an employer to carry out an assessment of a disabled person’s situation, whether by consultation, obtaining a medical report or otherwise. Indeed, a failure to consult may result in liability for unfair dismissal. Employers would therefore be well advised to take such steps, regardless of whether they are strictly required to do so as part of the duty to make reasonable adjustments under the DDA.