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Disability discrimination: failure to make reasonable adjustments is breach of trust and confidence
Where a provision, criterion or practice applied by an employer, or a physical feature of premises places a disabled employee at a substantial disadvantage in comparison with persons who are not disabled, the employer has a duty to take such steps as are reasonable to prevent that effect.
In Greenhof v Barnsley Metropolitan Borough Council the Employment Appeals Tribunal (EAT) has ruled that an employer’s serious breach of its obligation to make a reasonable adjustment under the Disability Discrimination Act 1995 (DDA 1995) was a breach of the implied term of trust and confidence which the employee was entitled to treat as a repudiatory breach of contract.
Facts of the case
The claimant, G, suffered from clinical depression which caused him to be absent from work for protracted periods. On his return to work the employer suggested that G, a project manager, might like to accept a lesser role. G, however, wished to resume his existing role and therefore resigned and claimed constructive unfair dismissal.
The first instance tribunal found that, by way of reasonable adjustment, the employer should have given G as many of his duties as project manager as he could cope with and, if necessary, other project managers should have undertaken any additional tasks beyond his capabilities for an interim period. The employer had failed to consider this option and had therefore been in breach of its duty to make reasonable adjustments.
EAT’s decision
The EAT held that as the tribunal had found unequivocally that there had been a serious breach of the obligation to make a reasonable adjustment over a period of time, this was ‘almost bound to be a breach of the implied term of trust and confidence’.
The EAT did accept that there might be circumstances where there can be a breach of the obligation to make reasonable adjustments which might not be regarded as repudiatory. However, on the facts and taking into account the findings of the tribunal, its view was that there was no way in which the respondent’s conduct could be regarded as anything other than repudiatory.
Comment
Where an employer is faced with the situation in which an employee’s physical or psychiatric condition is exacerbated by the nature of their job, then it is reasonable to consider whether alternative roles should be assigned to them.
The employer here, however, had failed to consult the individual, his doctor or its own occupational health advisers to assess whether or not the disability in question did impact on the employee’s ability to carry out the job.
If an employer can demonstrate that it has taken these steps and has carefully assessed whether or not the employee is placed at a substantial disadvantage because of any component of the job, and against this background offers a less pressured or less senior role, it will significantly reduce the risks of a finding of repudiatory breach. However, the process will have to be very carefully managed and proper consideration given to other forms of adjustment, such as altering hours or training, providing supervision or other support, or assignment to a different place of work.