In the case of RBS v Ashton, the Employment Appeal Tribunal (EAT) has confirmed that the test for determining whether an employer has complied with its duty to make reasonable adjustments is objective. The focus is on judging the reasonableness of the adjustment in question by considering its practical effect on the disadvantage suffered by the employee. The reasonableness or otherwise of the employer's thought process in determining whether or not to make a particular adjustment is irrelevant.
Miss Ashton had frequent, intermittent absences from work due to recurring migraines. RBS made a number of adjustments to accommodate her, including adapting her workstation and changing her hours of work. However this dispute concerned the application of RBS' sickness absence policy. The policy contained trigger points for frequent absence after which frequent absence disciplinary action would be considered and sick pay could be stopped. RBS applied its policy flexibly, extending the period over which Miss Ashton was not disciplined and continued to receive sick pay, when compared to a non-disabled employee. Eventually however, RBS issued a disciplinary warning as to Miss Ashton's attendance and withheld sick pay for the period of the warning (12 months), in accordance with its usual practice. Miss Ashton claimed that these actions amounted to a failure to make reasonable adjustments and discrimination under the Disability Discrimination Act 1995 (DDA).
The EAT dismissed her claims. It emphasised that, in relation to the duty to make reasonable adjustments, the objective test requires identification of the disadvantage suffered by the employee and then consideration as to how each of the possible adjustments would be effective to remedy that disadvantage. It held that the way in which RBS had relaxed its sickness absence policy, by flexing Miss Ashton's trigger points for disciplinary action and the consequential withholding of sick pay, meant that she had been more favourably treated than a non-disabled employee. RBS had not failed to make reasonable adjustments in this case and Miss Ashton's claim for disability discrimination also failed.
Impact on employers
- This case is a strong reminder that the employment tribunal is not concerned with whether the employer had or did not have good reasons for making (or not making) the adjustment in question.
- The DDA is concerned with outcomes and the focus is upon whether the proposed adjustments will be effective to remedy the disadvantage suffered by the disabled employee.
- In circumstances where a sickness absence policy has been adapted to accommodate disabled employees by, for example, being more lenient about the number or length of absences that will trigger any sanction, it will be difficult for a disabled employee to show that they have been disadvantaged by the policy.
- The EAT confirmed that only in exceptional circumstances will stopping sick pay in accordance with a sickness absence policy amount to a failure to make a reasonable adjustment.
- The EAT stressed that this case was decided under the DDA, and that it cannot be assumed that their reasoning will apply to any decision based on the current legislation, the Equality Act 2010.