11 Feb 2020
The Employment Appeal Tribunal (EAT) has found that permitting an employee to work from home at a monetary loss to the organisation could not be considered a reasonable adjustment.
If you want a quick summary of the case and the main takeaway points, you can skip ahead to our Too Long; Didn't Read section here.
Shah v TIAA Limited
Under the Equality Act 2010, employers must make reasonable adjustments in order to assist disabled employees in their role. But what does this mean?
A provision, criterion or practice (PCP) in the company can put a disabled person at a substantial disadvantage in comparison with people who are not disabled. You need to take reasonable steps to remove this disadvantage.
This could involve making changes to the employee’s working environment. Or something as simple as providing them with additional equipment or letting them work from home.
The law doesn’t allow businesses to justify a failure to comply with this duty. However, the adjustment needs to be one which it is reasonable for the company to make.
It’s unlawful to treat a disabled person unfavourably because of something arising in consequence of their disability. An example of this would be dismissing them after a period of disability-related absence.
It is, however, possible to justify such treatment it if can be shown to be a proportionate means of achieving a legitimate aim.
Background to the case
The claimant in this case was disabled as a result of severe back problems. She worked as an audit manager for her employer. This involved her travelling to client locations.
Her annual salary was calculated through a ‘chargeable days per year’ target. She needed to hit a target of 150 days per year. This was in order to ensure the organisation wouldn’t be paying her at a profit detriment.
Concern was raised regarding her productivity, with worries that she was not meeting this target.
Eventually, the claimant outlined that her back disability was getting worse. It was causing her increasing levels of pain.
She was referred to Occupational Health for an assessment, who recommended that she travelled minimally in her role. It also suggested that her condition was only going to get worse moving forward.
Meetings were held between the organisation and the claimant in order to discuss her ongoing capability issues.
As the claimant was now limited in how far she could travel, it was impossible for her to meet her target. She couldn’t work from home full time as a major part of her role involved travelling. Plus, there were not enough clients near to her home.
Therefore, the organisation didn’t agree to let her work from home as a reasonable adjustment.
The claimant rejected alternative job roles as they would’ve also involved travelling. She was then dismissed on the grounds of capability. As a result, she later brought numerous claims to the employment tribunal (ET). The claims included discrimination arising from a disability and failure to make reasonable adjustments.
What did the employment tribunal say?
Ultimately, the tribunal dismissed all of her claims, addressing each one in turn.
The tribunal did agree that the PCP requiring all audit managers to travel placed the claimant at a disadvantage.
However, permitting her to work from home would have placed the organisation at a deficit. Therefore, it couldn’t be considered reasonable.
The claimant had also not been subjected to discrimination arising from a disability. This was because no targets had been placed upon her that were unreasonable or unfair.
From what the tribunal could establish, her dismissal was in pursuit of a legitimate aim. The aim was to have an audit manager capable of visiting clients and performing their role.
The dismissal was also proportionate to the situation. The organisation had investigated the matter, obtained medical evidence and considered reasonable adjustments before making this decision.
What did the Employment Appeal Tribunal (EAT) say?
The claimant appealed to the Employment Appeal Tribunal (EAT) but was ultimately unsuccessful.
She argued that the organisation had failed in their duty to make reasonable adjustments. According to her they hadn’t considered whether reducing the hours she worked would have helped. The EAT disagreed.
At the time, the claimant had never suggested to reduce her hours—she didn’t want to see a corresponding reduction in her pay. The EAT held that there was no adjustment put forward by the claimant that wouldn’t have resulted in a loss for the business.
She also claimed that the tribunal failed to take into account the actions of the organisation. Particularly in response to other audit managers who’d registered similar concerns with not meeting their targets.
Again, the EAT did not uphold this argument. The tribunal had identified the other situations. However, they’d also pointed out that her circumstances were much more significant.
This ruling serves as a reminder to employers. Sometimes an adjustment requested by a disabled employee may not be reasonable for them.
A claimant can try to later argue that an adjustment should have been considered, but wasn’t, at a later date. The fact that they didn’t seek to implement it sooner could suggest it was not a reasonable option for the organisation.
That said, this is an extreme example. Employers should always err on the side of caution in these situations.
If you don’t feel you can accommodate such a request, you should have a clear justification as to it’s not possible. Failure in this regard could leave you open to a costly discrimination claim.
A disabled employee worked as an audit manager and was required to travel to see clients. When her condition worsened she requested to work at home as a reasonable adjustment. This was rejected. All other alternatives offered to her also involved travelling, so she rejected them. She was then dismissed on grounds of capability.
The employee brought numerous claims to tribunal, including a failure to make reasonable adjustments. They were all dismissed. Working from home would have put the employer at a deficit, and therefore, wasn’t reasonable. The targets that were placed on her were deemed reasonable and fair.
The employee then took the claim to the EAT. She argued that the employer hadn’t considered reducing her hours. However, the employee hadn’t requested reduction in hours at the time. All suggestions she had made would’ve resulted in a loss for the business.
Sometimes, requested reasonable adjustments aren’t ‘reasonable’. Make sure you always provide clear justification if you feel adjustments aren’t possible. Failing to do so may result in a costly tribunal claim.
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