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Reasonable adjustments and comparators - why simple is not necessarily right

You have a claim for breach of the duty to make reasonable adjustments?

Well, that’s simple isn’t it?

No, not at all.

Sarah Fraser Butlin and Rachel Crasnow explore the issues in reasonable adjustments claims and particularly the difficult comparator point which is raising its ugly head again.

Very often when we are considering a claim for breach of the duty to make reasonable adjustments, it’s too easy to jump straight to the question of whether the claimed adjustment is reasonable.  However, this misses some key stages in the legal analysis that must be considered first.

Sections 20 and 21 Equality Act 2010 will be familiar to readers but there are two steps to establish that a duty is owed before there can be any consideration of the claimed adjustments.

Firstly the claimant must prove that there is provision, criterion or practice, or physical feature, or relevant matter which puts a disabled person at a substantial disadvantage compared to a person who is not disabled.  This is important because the duty to make reasonable adjustments is intended to provide specific, targeted measures to deal with a particular substantial disadvantage rather than being generic measures to make things easier for the disabled person.

Care must be taken to specifically set out the PCP, physical feature or relevant matter (or require the Claimant to set them out) so that the substantial disadvantage can then be identified.

The major issue at present relates to the second question of substantial disadvantage.  The substantial disadvantage must be “in comparison with persons who are not disabled”.  This requires the Claimant to go back to the question of disability: what is it about the person’s disability that gives rise to the substantial disadvantage because of the specified PCP, physical feature or relevant matter? That disadvantage must be something that a non disabled person would not face.

It is in this context that the EAT decision of Griffiths v Secretary of State for Work and Pensions [2014] EqLR 545 dealing with absence management procedures is very concerning. While it appears to be deceptively simple, we would suggest that the EAT decision is wrong.

In Griffiths, the claimant was absent and had been given a written warning under the attendance policy. The Claimant relied upon “the operation of the attendance management policy” (as opposed to the terms of the policy itself, which would constitute an indirect discrimination claim) and that this “was a requirement to attend work at a certain level in order to avoid receiving warnings and a possible dismissal”. She sought two reasonable adjustments, firstly to disregard the disability absence and therefore have the warning withdrawn; and secondly for the number of days’ absence that triggered the policy to be increased.  The EAT emphasised that the proper comparator is “a non-disabled person absent for sickness reasons for the same amount of time but not for disability-related sickness. If a claimant is treated at least as well as such comparators s/he cannot be at a disadvantage let alone a ‘substantial’ disadvantage.” (at para 33).  People who are not disabled would similarly be affected by the attendance management policy if they took a similarly long period of time off work sick. Therefore there was no duty to make reasonable adjustments.

What is clear from the judgment is that the comparator that was applied was a non-disabled person with the same level of absence.  In other words the requirement for the comparator to be in not materially different circumstances has been imported into the comparative exercise. The EAT has applied a direct discrimination comparator in the context of the duty to make reasonable adjustments.

When we consider Griffiths, we think that the EAT has got the analysis wrong.  There are three reasons:

  1.      The Equality Act itself deals with comparators.  Section 23 provides that the comparator should be in not materially different circumstances.   But s23 is only expressly applied to direct, dual and indirect discrimination.  It is not said to apply to reasonable adjustments.
  2.      Secondly looking at the Framework Directive, to imply a direct discrimination comparator into reasonable adjustments is plainly wrong. Although a challenge to a comparative exercise per se failed in Foster v Cardiff University [2013] EqLR 718, we would suggest that it can and should be used to challenge the very narrow comparator that is currently being applied because Article 5 focuses on “appropriate measures … to enable a person with a disability to have access to, participate in, or advance in employment … unless such measures would impose a disproportionate burden on the employer”.  That calls for a broader consideration than that in a direct discrimination context, albeit that Article 5 must be read together with Article 2.
  3.      Finally applying the UN Convention on the Rights of Persons with Disabilities, there is considerable scope to argue that a narrow comparator should not be applied. What is key in this context is that the Convention speaks of reasonable accommodation: Article 27(1)(i) of the CRPD provides that state parties must “Ensure that reasonable accommodation is provided to persons with disabilities in the workplace”. Reasonable accommodation is defined as ensuring the enjoyment or exercise of rights on an equal basis with others. There is no prior requirement of substantial disadvantage.  In addition this must be read together with the UN Convention’s use of a social model, rather than medical model, of disability.  This emphasises the removal of societal barriers, rather than the individual’s condition and effectively broadens the definition of disability.  It must also be read together with the emphasis on accessibility which runs throughout the Convention. Article 9 requires states to take measures to ensure accessibility: once again the requirement is accessibility; it is not the removal of substantial disadvantages to accessibility.  Taking those two points together there are good arguments to suggest that reasonable accommodation similarly requires enjoyment of rights on a substantively equal basis with others, not formal equality with others. (For extended analysis on the UNCRPD see Fraser Butlin [2011] ILJ 428 and Lawson [2011] ILJ 359).

Griffiths is listed at the Court of Appeal in February and it is to be hoped that these issues will be resolved.

However Griffiths is determined, it is helpful to return to the start of this blog post.  There is no requirement to consider the reasonableness or otherwise of adjustments unless and until there is a duty to make those adjustments.  It is critical that the PCP, physical feature or relevant matter are properly identified and also the substantial disadvantage.  Once that is clearly delineated, determining the reasonableness of adjustments is surely simple: but that is a matter for another day.

Rachel will be speaking about Equal Pay at the Discrimination Law Conference in Friday 23 January 2015

Congress House, Great Russell Street, London WC1B 3LS

Conference devised by Michael Rubenstein for details click Discrimination Law Conference 2015

This article was first published by Michael Rubenstein Publishing on 19 November

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