Reasonable adjustments and disability

Given that we have had disability legislation now for 20 years, you would have thought employers might have realised by now that they have a legal duty in the Equality Act 2010 to make reasonable adjustments to level the playing field for disabled staff. A recent case in the Hull Tribunal shows that employers are still prepared to play fast and loose with that key pillar of the law.

Michelle Proctor worked in a GP Practice whose strapline on their advertising is ‘working together to provide a caring, quality service’. She suffered from carpal tunnel syndrome and arthritis, both conditions which are likely to have a substantial effect on someone’s ability to carry out normal day to day activities.

When she commenced work in 1994 as a clerical assistant, she declared to her employer she had undergone carpal tunnel decompression surgery, had arthritis in both hands and tendonitis of the wrists and arms, so this employer clearly knew about her condition, which is of course a precondition to the duty to make the adjustment.

In 2015 a merger lead to an increase in workload and the employee took 20 days off due to pain in her hands. Occupational health recommended that voice recognition software called Dragon Professional Natural Speaking should be installed to help manage her condition. The employee herself took steps to research providers, obtain quotes and arrange a demonstration – this should really have been the employer’s job.

The employee remained off work for a further 6 months whilst she pressed the employer to progress this issue. They took the stance that they wouldn’t arrange for the software training to be done until the employee was back in work. She made it clear in correspondence that she couldn’t come in whilst sick to do the training because it required her to use the keyboard at the same time as the voice recognition and she was still in too much pain.

When she returned to work after a 7-month absence on a phased basis it became clear the employer had done nothing to acquire the software. Her manager took the view it was ‘her project’. She was offered flexible working but then she would only be paid for the hours she did, and this offer involved no sick pay, so the employee rejected it.

8 months later the employee was offered a slightly different role which reduced the time she spent on a keyboard from 80% to 70%.

Eventually after 2 years the employee raised a grievance. This appears to have been triggered by the employer having finally got around to getting the software but not providing the necessary training, but yet still expecting the employee to do her duties.

At a grievance meeting she told them she was losing trust and confidence. The investigation found the employer couldn’t have done anything more to support her, so she resigned. She told the tribunal how she’d often been left in tears.

The Tribunal awarded £12,421 for compensation for unfair dismissal and £14,385 loss of earnings arising out of unlawful discrimination, £15,000 for injury to feelings arising out of unlawful discrimination, in particular the failure to make reasonable adjustments. With the addition of interest, the total award was £44,673.75.

This case shows how an employer keeping their fingers crossed during a period of absence, hoping the employee won’t come back can get into difficulty as regards not taking pro-active steps to ensure the return can be facilitated, and how a general lack of understanding of their key duties can lead to significant liabilities.