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You are here: BAILII >> Databases >> United Kingdom Employment Appeal Tribunal >> Noor v Foreign & Commonwealth Office (Disability Discrimination : Reasonable adjustments) [2011] UKEAT 0470_10_1402 (14 February 2011) URL: https://www.bailii.org/uk/cases/UKEAT/2011/0470_10_1402.html Cite as: [2011] ICR 695, [2011] UKEAT 0470_10_1402, [2011] UKEAT 470_10_1402 |
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EMPLOYMENT APPEAL TRIBUNAL
58 VICTORIA EMBANKMENT, LONDON EC4Y 0DS
At the Tribunal
Before
MS K BILGAN
FOREIGN & COMMONWEALTH OFFICE RESPONDENT
Transcript of Proceedings
JUDGMENT
APPEARANCES
(Representative)
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(of Counsel) Instructed by: Treasury Solicitors Office Litigation & Employment Group One Kemble Street London WC2B 4TS |
SUMMARY
DISABILITY DISCRIMINATION – Reasonable adjustments
PRACTICE AND PROCEDURE – Striking-out/dismissal
The Employment Judge erred in striking out the Claimant’s claim. The Claimant, a job applicant, was interviewed about a competency different to that which had been (mistakenly) set out in the advertisement for the post. The Employment Judge correctly proceeded on the basis that the Claimant, who was disabled, had been placed at a substantial disadvantage by a PCP applied by the Respondent. She ought not to have struck out the claim unless it was plain and obvious that there was no step which it was reasonable for the Respondent to take in order to prevent the PCP having that effect. It was arguable that there were steps which it was reasonable for the Respondent to take in order to prevent the PCP having that effect. Project Management v Latif Institute [2007] IRLR 579 considered. The Employment Judge also erred in her construction of section 18B(1)(a) of the Disability Discrimination Act 1995; HM Prison Services v Beart [2002] EAT/650/01 applied. Appeal allowed.
HIS HONOUR JUDGE RICHARDSON
The background facts
The Tribunal proceedings
“It is my case that I was discriminated against because of my disability.... I have described above how the Foreign and Commonwealth Office’s arrangements put me at a substantial disadvantage. That substantial disadvantage led to a detriment when I was not offered the position applied. The treatment I received was unfair and has affected my confidence and self esteem”
The Tribunal’s reasoning
“14. It is extremely rare that a claim of disability discrimination would be struck out as having no reasonable prospect of success. The only issue in this case was the failure to make reasonable adjustments. In order for the Claimant to succeed he must show a) that he is disabled and b) that the provision, criterion or practice imposed by the Respondents has placed him at a substantial disadvantage.
15. I am satisfied that the Respondents will be able to demonstrate that for the interview process adjustments were made to enable him to perform his role. That does not appear to be the Claimant’s concern. His concern is the late change of the competencies.
16. The late change of the competencies clearly places the Claimant at a disadvantage compared to a person who is not disabled. What is the duty of the Respondents in this regard? It clearly could be an argument that the Respondents have in fact notified the Claimant giving him four days notice of what will be the subject matter of the interviews and the Claimant did not challenge the matter at the time and nor did he pick up that he needed to prepare in a different way.
17. Would it make any difference if the Claimant were the subject of a re-interview? In order for an adjustment to be reasonable, Section 18B(1)(a) says that it must show that taking that step would prevent the disadvantage.
18. If the Respondents were to have re-interviewed the Claimant it would make no difference. He clearly scored on a number of competencies below the relevant line. To re-interview him on one aspect would be a matter of principle only, it would not in fact achieve the end of removing a disadvantage such that he would obtain the job, it would merely give him the opportunity but then be marked as a fail again.
19. It cannot be said in those circumstances, therefore, that this would be a reasonable adjustment that the Respondents had failed to take. I consider that no reasonable Tribunal could reach the conclusion that the Claimant had demonstrated that the Respondents were under a duty to make that adjustment or that it was a reasonable adjustment. And in those circumstances I strike out the claim as having no reasonable prospect of success.”
Submissions on appeal
14. On behalf of the Claimant Mr Kamara submits that the Employment Judge was wrong to strike out the claim. A full investigation of the facts was required. In particular the Employment Judge was wrong to say or assume that everything required by way of reasonable adjustment was undertaken before the interview. If something occurred – such as a mistake or the discovery of a mistake – which required an additional adjustment to be made the Respondent should have made a further adjustment: Project Management v Latif Institute [2007] IRLR 579. The duty to make reasonable adjustments was on the employer: see Cosgrove v Caesar & Howie [2001] IRLR 653 and (since substantial disadvantage was proved) the burden shifted to the employer. No evidence was heard from the Respondent as to whether any other form of reasonable adjustment was considered.
The legislative provisions
“(1) Where –
(a) a provision, criterion or practice applied by or on behalf of an employer, or
(b) any physical feature of premises occupied by the employer,
places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect.”
20. Section 18B(1) provided as follows:
“(1) In determining whether it is reasonable for a person to have to take a particular step in order to comply with a duty to make reasonable adjustments, regard shall be had, in particular, to –
(a) the extent to which taking the step would prevent the effect in relation to which the duty is imposed;
(b) the extent to which it is practicable for him to take the step;
(c) the financial and other costs which would be incurred by him in taking the step and the extent to which taking it would disrupt any of his activities;
(d) the extent of his financial and other resources;
(e) the availability to him of financial or other assistance with respect to taking the step;
(f) the nature of his activities and the size of his undertaking;
(g) where the step would be taken in relation to a private household, the extent to which taking it would –
(i) disrupt that household, or
(ii) disturb any person residing there.”
21. As to the burden of proof, section 17A(1C) provided:
“Where, on the hearing of a complaint under subsection (1), the complainant proves facts from which the tribunal could, apart from this subsection, conclude in the absence of an adequate explanation that the respondent has acted in a way which is unlawful under this Part, the tribunal shall uphold the complaint unless the respondent proves that he did not so act.”
Our conclusions
“To prove an allegation that there has been a failure to comply with the duty to make reasonable adjustments, an employee must prove facts from which it could be inferred in the absence of an adequate explanation that such a duty had arisen, and that it had been breached. If the employee does this the claim will succeed unless the employer can show that it did not fail to comply with its duty in this regard.”
26. In Project Management v Latif the Appeal Tribunal (Elias P presiding) said:
“53 ....... It seems to us that by the time the case is heard before a tribunal, there must be some indication as to what adjustments it is alleged should have been made. It would be an impossible burden to place on a respondent to prove a negative; that is what would be required if a respondent had to show that there is no adjustment that could reasonably be made. Mr Epstein is right to say that the respondent is in the best position to say whether any apparently reasonable amendment is in fact reasonable given his own particular circumstances. That is why the burden is reversed once a potentially reasonable amendment has been identified.
54 In our opinion the paragraph in the Code is correct. The key point identified therein is that the claimant must not only establish that the duty has arisen, but that there are facts from which it could reasonably be inferred, absent an explanation, that it has been breached. Demonstrating that there is an arrangement causing a substantial disadvantage engages the duty, but it provides no basis on which it could properly be inferred that there is a breach of that duty. There must be evidence of some apparently reasonable adjustment which could be made.
55 We do not suggest that in every case the claimant would have had to provide the detailed adjustment that would need to be made before the burden would shift. However, we do think that it would be necessary for the respondent to understand the broad nature of the adjustment proposed and to be given sufficient detail to enable him to engage with the question of whether it could reasonably be achieved or not......
57 We accept, however, that the proposed adjustment might well not be identified until after the alleged failure to implement it, and in exceptional cases, as here, not even until the tribunal hearing. Indeed, in certain circumstances we think it would be appropriate for the matter to be raised by the tribunal itself, particularly if the employee is not represented. To take a simple example, where a Code provides an example of an adjustment which on the face of it appears appropriate, that is something the tribunal should take into account. We think that it would be perfectly proper for a tribunal to expect an employer to show why it would not have been reasonable to make that adjustment in the particular case, although of course the employer must have a proper opportunity of dealing with the matter.”
32. The Employment Judge’s reasoning was, we think, erroneous in two other respects.