By Michael Nadin - Associate Solicitor The Coronavirus Job Retention Scheme (CJRS) was originally due…
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When deciding a reasonable adjustments claim under Section 4A of the Disability Discrimination Act 1995 (now replaced by the Equality Act 2010), the Employment Tribunal (ET) must identify the relevant provision, criterion or practice (PCP) and then identify whether or not its application placed the claimant at a substantial disadvantage in comparison with persons who are not disabled. If a non-disabled person would be affected by the PCP in exactly the same way as a disabled person, for example where its effects are financial, there is no comparative substantial disadvantage to the disabled person and no duty to make reasonable adjustments arises.
In Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley, the Employment Appeal Tribunal (EAT) found that the ET had erred in law in finding that Mrs Bagley’s employer had breached its duty to make reasonable adjustments in relation to a number of PCPs.
Mrs Bagley was employed as a radiographer. In November 2008, she suffered damage to her right arm in an accident at work and was on sick leave until March 2009. While she was absent, her income was topped up with a Temporary Injury Allowance (TIA), to a rate equivalent to 85 per cent of her full salary, but this was not available if she returned to work part-time. When she began a phased return to work, therefore, her situation was that she could not work full-time because of her injury but was unable to manage on a reduced income. She did have the option of accepting a permanent reduction in hours, in which case she could apply for Permanent Injury Benefit to supplement her income, but on 19 May 2009 she again went on sick leave and was paid TIA until she was dismissed on grounds of ill health in February 2010.
The ET found that Newcastle Upon Tyne Hospitals NHS Foundation Trust had failed to implement various reasonable adjustments and granted Mrs Bagley an interim award of £30,000 plus interest for injury to feelings and £10,000 aggravated damages. A decision on the remaining aspects of remedy was adjourned pending the outcome of a personal injury claim that Mrs Bagley was pursuing against the NHS Trust regarding the injury to her arm. On appeal, however, the EAT found that none of the PCPs identified by the ET was genuine.
In the EAT’s view, the Trust had made a number of reasonable adjustments to facilitate Mrs Bagley’s return to work. The reason she was not able to do so on a part-time basis was her personal financial situation. She could not afford a reduction in pay because of the size of her mortgage repayments and because her husband was then out of work. In that respect, she was not at a substantial disadvantage compared with someone who was not disabled but rather with someone who, for example, had a smaller mortgage and a partner in regular work. The ET had fallen into the error identified by the EAT in RBS v Ashton of simply listing things that it did not like about the way the employer had dealt with Mrs Bagley’s situation and labelling them as failures to comply with the duty to make reasonable adjustments.
The appeal was therefore upheld. Furthermore, the EAT found the award for injury to feelings disproportionate in the circumstances and reduced it to £11,000 and the aggravated damages award to nil.