Employment e-Brief – Disability Discrimination

Wednesday 21st July 2010

Philip Paget, employment law partner

There have been a lot of cases about disability discrimination recently, and to follow is one on the extent of an employers duty to make reasonable adjustments.

In Secretary of State for Work and Pensions (Job Centre Plus) v Wilson, the EAT decided on the extent of the duty that an employer has to make reasonable adjustments.

In this case, the employee suffered from agoraphobia and panic and anxiety attacks when faced with new situations. The employee was to be re-deployed and suggested that she be allowed to work from home instead. The employer discussed alternative proposals with her, such as the provision of a taxi to and from work amongst others, which the employee declined.

The EAT said that the starting point would be determining if whether the employers making the reasonable adjustment would mean that the disadvantage suffered by the employee as a result of disability would be overcome. If so, the next point to consider would be whether this reasonable adjustment was practicable for the employer.

The EAT questioned whether allowing the employee working from home would have overcome the disadvantage suffered as a result of agoraphobia. It noted that the employee’s role involved direct access to the public, and this could not be done at home. It also observed that the employer had sought non-public facing work for the employee, but none was available.

The EAT held therefore that it was not practicable for the employer to allow working from home, as there was no work that the employee could do and working from home was not feasible for the role that the employee did. The employer had discussed alternatives that were practicable as reasonable adjustments with the employee. Therefore, the employer was not in breach of its duty to make reasonable adjustments.

Employers must bear in mind however that they must consider all reasonable adjustments that are practicable, for the employee, as happened in this case, to ensure that they are not in breach of their duties to make reasonable adjustments.

Disability discrimination is a complex area, and this case particularly is fact sensitive involving an agoraphobic employee. It would be prudent to seek advice when an employee requires any reasonable adjustments to be made. For further advice on reasonable adjustments please contact Philip Paget on philip.paget@gordonsllp.com or another member of the Employment Team.