Reasonable Adjustments - Communting
May 2015

Article 1 - Reasonable Adjustments - Matthew Curtis

I recently had a case involving an employee whose disability was chronic back and hip pain and sciatica. He had suffered for a long time and had bilateral hip replacements at a relatively early age. The extent of his disability was such that he couldn't drive for longer than about 30 minutes, which was a problem as he lived 2 hours' drive from work.

The Claimant claimed that his employer should have allowed him to work from home full-time as a reasonable adjustment. The Respondent admitted that he was disabled and that a duty to make reasonable adjustments generally arose, but as far as commuting was concerned the Respondent said "it's not our problem", contending that it was for the Claimant to arrange his own attendance at the workplace and the duty to make reasonable adjustments was limited to matters arising at work.

This raised the interesting question of how far the scope of the duty to make reasonable adjustments goes: is it limited to matters arising in the workplace, or does it extend to making adjustments to help the employee to physically get to work?

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2. Amendment to wording of the duty post-Kenny

The wording of the DDA regarding reasonable adjustments is slightly different to the wording of the EqA, which could result in a difference in approach. The DDA provided (as at the time of Kenny):

"s.6 (1) Where -

(a) any arrangements made by or on behalf of an employer, or

(b) any physical feature of premises occupied by the employer, place 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 arrangements or feature having that effect.

(2) Subsection (1)(a) applies only in relation to -

(a) arrangements for determining to whom employment should be offered;

(b) any term, condition or arrangements on which employment, promotion, a transfer, training or any other benefit is offered or afforded."

The relevant provisions in the Equality Act 2010 provide:

"s.20(3) The first requirement is a requirement, where a provision, criterion or practice of A's puts a disabled person at a substantial disadvantage in relation to a relevant matter in comparison with persons who are not disabled, to take such steps as it is reasonable to have to take to avoid the disadvantage."

Relevant matter is defined at Schedule 8, paragraph 2(3) and the table at Schedule 8 part 2 paragraph 5(1). In short, a "relevant matter" is "Employment by the employer".

So the question under the EqA 2010 is whether the employee is put at a substantial disadvantage in relation to his employment.

This is arguably wider than the position under the 1995 Act.

3. PCP can include term of the contract

This is something that does not seem to have been considered in Kenny. Most contracts (including the Claimant's contract in my case) will include a clause specifying the employee's place of work. A disability causing substantial difficulties in attending that place of work (e.g. due to commuting) would therefore seem to trigger the duty to make reasonable adjustments under the EqA 2010. It would also seem to fall within s.6(2)(b) of the DDA, despite what the EAT said in Kenny.

4. Wider interpretation of PCP since Kenny

Since the decision in Kenny there have been cases which have seemed to indicate that the concept of a PCP is given a relatively wide interpretation. Two examples:

a) Environment Agency v Donnelly [2014] EqLR 13 - the EAT upheld the finding of a tribunal that a claimant who was disabled by reason of her impaired mobility had been subject to a PCP of 'having to walk a distance from her car to the office in the prevailing cold weather and possibly on uneven surfaces', and upheld the finding that a reasonable adjustment would have been to allocate her a parking space near to the office. This case was concerned with arrangements for the Claimant to attend the workplace; it therefore seems that the duty to make adjustments can include the issue of how the Claimant gets to work.

b) Croft Vets & ors v Butcher UKEAT /0430/12 - The EAT upheld a finding of the ET that the PCP was that the Claimant "be able to return to work performing the essential functions of her job". The reasonable adjustment contended for, which the EAT again upheld, was referring the Claimant to private psychiatric sessions and/or counselling as recommended by a private psychiatrist the employer had referred her to. Kenny was cited to the EAT, who stated that referral to a private psychiatrist was "work related" for the purposes of Kenny and the (amended) DDA. The concepts of a PCP and a reasonable adjustment were given quite a wide interpretation in this case.

Conclusions

In light of the above, it seems that the obiter comments of Morison P in Kenny cannot be considered to carry any weight, either because there is no longer a requirement that the PCP be "work related", or because the concept of a PCP is wide enough to include arrangements for attending the workplace in any event (so long as that is framed as "a requirement to attend the workplace" or similar).

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