Facts
Ms Hundal was engaged as an agency contract worker by South Gloucestershire Council. At the material time she suffered from endometriosis which was accepted by the Respondent to constitute a disability. The Claimant suffered a period of disability related sick leave. Her contract was subsequently terminated, despite being, as the Employment Tribunal found, “an experienced social worker who had picked up complex cases which she was managing well,” and “really liked by the families she worked with.”
At first instance she was successful in her claims that the termination of her engagement as an agency contract worker constituted direct disability discrimination under s13 EqA 2010 and discrimination arising from disability under s15 EqA 2010.
In relation to the s15 EqA claim the Tribunal had found that the termination of the agency contract was not a proportionate means of achieving a legitimate aim, which was said by the Respondent to be efficient management of the service. The Tribunal found that terminating the Claimant’s agency placement because of her sickness absences, without considering what additional support could be provided was not a proportionate means of achieving a legitimate aim. It found that the Respondent could have referred the Claimant to OH for additional support as well as considering reasonable adjustments to her work patten, such as allowing her to reduce her hours to spread her 4-day week over 5 days.
South Gloucestershire Council appealed the decision at first instance.
Judgment
HHJ Tayler upheld the Tribunal’s decision in relation to the s15 claim. In so doing, he gave guidance at paragraph [26] on the interaction between an employers’ duty to make reasonable adjustments under sections 20 and 21 Equality Act 2010 and the question of objective justification in discrimination arising from disability claims under s15 Equality Act 2010.
[26] “The Employment Tribunal was entitled to have regard to assistance that might help the claimant achieve better attendance: “Mr Careswell had also some suggested adjustments to manage the Claimant’s disability, such as working from home and spreading her 4-day week over 5 days.” Neither suggestion was attempted. The Employment Tribunal was also entitled to have regard to the possibility that occupational health might assist; but a referral was not even considered because the claimant was an agency staff member. I do not accept Mr Leach’s contention that it is only if there has been a finding of a failure to make reasonable adjustments than an adjustment can be taken into account when considering justification. I do not consider Stott is authority for that proposition. If a failure to make a reasonable adjustment has been asserted and the compliant has failed, the failure to make the specific adjustment is highly unlikely to be relevant to the analysis of justification. However, it does not follow that a complaint of failure to make reasonable adjustments must have been made out for the possibility of an adjustment to be relevant to the assessment of justification. A claim of failure to make reasonable adjustments might be out of time, but the possibility of the adjustment being made might still be relevant to justification. An adjustment that that would only be available in the future, that would reduce the likelihood of further absences, could be relevant to justification. HHJ Auerbach did not hold that the possibility of an adjustment could only be considered if there has been a successful claim of failure to make reasonable adjustments but that “the question of alternatives to the measures adopted is to be approached by reference to the principles deriving from the general authorities.” In other words, the possibility of steps to assist the claimant improve her attendance is relevant to the question of whether the respondent has established that the termination of the claimant’s engagement was proportionate, in the sense of being appropriate and reasonably necessary, means of achieving the asserted legitimate aim; the efficient management of the service,” (emphasis added).
Implications
As recognised by the Court of Appeal in City of York Council v Grosset [2018] EWCA Civ 1105, paragraph 5.21 of the Employment Code of Practice issued by the Equality and Human Rights Commission makes it clear that a link between failure to put in place reasonable adjustments and the unfavourable treatment in issue under EqA 2010 s15(1)(a) may be an important factor to be taken into account when determining justification under s15 EqA 2010.
The EHRC Employment Code, states at paragraph 5.21 that “[i]f an employer has failed to make a reasonable adjustment which would have prevented or minimised the unfavourable treatment, it will be very difficult for them to show that the treatment was objectively justified.”
HHJ Tayler’s Judgment in Hundal is important because it gives guidance on the relevance of reasonable adjustments to the objective justification question under s15 EqA 2010 and provides a practical example of operation of paragraph 5.21 of the EHRC Employment Code of Practice. Following Hundal, it is not the case that consideration of reasonable adjustments is only relevant to the question of objective justification under s15EqA where a concurrent claim for reasonable adjustments has been brought and upheld. Past failures to make adjustments (which may have affected attendance) but which were out of time may be relevant. So too are future possible adjustments to help an employee improve their attendance.
Georgina Churchhouse acted pro bono for Ms Hundal, having not appeared below. A link to the Judgment is here.
