Auxiliary aids and reasonable adjustments: did the tribunal get it right?
Despite describing auxiliary aids recommended for an employee returning from cancer treatment as ‘desirable’, the tribunal still concluded that Ofsted's failure to provide them did not amount to a failure to make reasonable adjustments. In R Phullar v Ofsted, the Employment Appeal Tribunal (EAT) examined whether the tribunal had applied the correct approach to this and other claims.
Facts
Ms Phullar worked as an Early Years Regulatory Inspector (EYRI). Her role involved on-site inspections of childcare providers, including nurseries and childminders, and completing reports from home. She began a period of sick leave to undergo major surgery following a cancer diagnosis. Her clinicians advised that her post-operative recovery would take approximately 12 to 18 months.
After seven months, Ms Phullar returned to work on a part-time basis, working from home. Occupational health confirmed she was fit for desk-based work but should avoid inspections and undergo a workstation assessment. She made her own adjustments to her home workstation, using pillows and raising her screen on a box file, and referred herself to Access to Work (ATW), which recommended the following:
- an ergonomic chair
- coccyx cutout wedge
- inflatable lumbar support
- ergonomic keyboard, keypad and mouse
- adjustable footrest
- electronic sit-stand desk
- monitor arm
- Olympus voice recorder
- travel allowance
- rolling backpack
- regular breaks; and
- reduced workload of two site visits per week
The DWP agreed to fund these auxiliary aids.
Three months later, a further occupational health report said she remained fit for her current role but not full duties. It advised that once she received the specialist equipment, it might be possible to increase her workload. The report reiterated the 12-to-18-month recovery period advised by her consultant.
Ms Phullar attended an informal catch-up meeting and then a formal attendance meeting. This was followed by a further conversation in which she criticised the occupational health report. She asked to shadow a colleague on inspections and to resume carrying out some local inspections and/or attend childminder visits on her own, using the equipment recommended by ATW, once provided.
Ofsted sought further clarification from occupational health who advised that a risk assessment was required to determine whether the equipment would enable Ms Phullar to increase her workload or resume inspections, as its impact could not be predicted until she had received and adjusted to it.
The attendance meeting was reconvened, and Ms Phullar was informed that she was being dismissed on grounds of ill health. Ms Phullar appealed, but it was dismissed. She brought claims for unfair dismissal, discrimination arising from a disability, and failure to make reasonable adjustments.
Employment Tribunal
For the failure to make reasonable adjustments claim, Ms Phullar argued that Ofsted should have put the following in place:
- allowing her to shadow colleagues during on-site inspections
- providing a phased return to inspection duties
- implementing the auxiliary aids recommended by ATW; and
- considering alternative roles before dismissal
The tribunal agreed that Ofsted should have made the first two adjustments. However, it rejected the third and fourth points. It accepted that although it would have been ‘desirable’ for Ofsted to provide the auxiliary aids, they would not have removed the disadvantage she faced. It also concluded that Ofsted had considered alternative roles before dismissal.
The claim of discrimination arising from a disability also failed; the tribunal concluded that she “was not dismissed in consequence of her disability” and that it had no significant influence on the decision to dismiss.
The tribunal also dismissed the unfair dismissal claim. Although it noted that greater consultation could have been undertaken, it found that the overall procedure was reasonable and that Ofsted had acted fairly.
Employment Appeal Tribunal
Failure to make reasonable adjustments:
The EAT noted that it was unclear why the tribunal considered it was “desirable” to provide the auxiliary aids while also finding that they would not have alleviated the disadvantage. The tribunal's reasoning was insufficiently explained and contained no independent analysis.
The EAT found that although there had been discussion about an alternative role, the evidence as to its suitability was conflicting, and the tribunal failed to make any substantive finding on this issue.
It also highlighted an inconsistency in the tribunal's reasoning: the tribunal held that Ofsted were not in breach of their legal duty to make reasonable adjustments when it didn't provide the auxiliary aids - including a dictaphone - yet said that she should have been allowed to shadow a colleague to see how the dictaphone could be used. It also failed to explain how a phased return to inspections would have alleviated the disadvantage.
Discrimination arising from a disability:
The EAT found that the tribunal applied the wrong test when it concluded that she “was not dismissed in consequence of her disability” and that it had no significant influence on the decision to dismiss. The correct test is under section 15 of the Equality Act 2010 which provides that discrimination arising from a disability is made out when an individual with a disability is treated unfavourably because of something arising in consequence of that disability, unless the employer can justify it as a proportionate means of achieving a legitimate aim.
Unfair dismissal:
The EAT held that the tribunal's conclusion - that dismissal fell within the band of reasonable responses - was inconsistent with its findings that it would have been reasonable to allow her to shadow a colleague carrying out inspections, and to embark on a phased return to inspections.
Overall, the EAT criticised the tribunal's decision as ‘extensively flawed’ and has remitted all claims to a new tribunal for a fresh hearing.
What does this mean for employers?
This case is a useful reminder of your legal duties to make reasonable adjustments for disabled employees. The legal obligation is on you, as employers, to make reasonable adjustments to avoid the disadvantage the disability causes the employee at work, but you should discuss with them what support would be most effective.
What is reasonable depends on the circumstances. The EHRC in its Employment Statutory Code of Practice highlights factors such as the likely effectiveness of the adjustment, its practicality and associated cost.
Here, it is not clear why Ofsted didn't implement the auxiliary aids recommended by ATW, particularly given that DWP had agreed to fund them. It seems that the logical step would have been to put the equipment in place, allow the employee to use it, and then reassess the situation. It seems bizarre that Ofsted didn't trial the equipment, and the judgment offers no explanation for this. By failing to do so, they appear to have acted prematurely in dismissing the employee.
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