Dotting the I’s and crossing the T’s when drafting PCPs

The recent case of Mrs A Martin v City and County of Swansea serves as a timely reminder to practitioners and claimants, that the devil really is in the detail when identifying the correct PCP in a reasonable adjustment claim.

The duty to make reasonable adjustments places an obligation on employers to make reasonable adjustments to any provision, criteria or practice (PCP) applied to all staff, where that PCP places a disabled employee at a substantial disadvantage.

In this case, the employer applied its absence management policy to the Claimant who was disabled, and ultimately she was dismissed. She brought a claim against her employer which included an allegation that it failed to make reasonable adjustments in failing to offer her a suitable alternative role as an alternative to her dismissal.

The question that arose was whether or not a PCP was applied to her which placed her at a substantial disadvantage and if so, were reasonable adjustments made to that PCP.

The Tribunal determined that, because the absence management policy contained within it a discretion for the employer to for example, consider alternative roles for disabled employees, the Claimant could not have been placed at a substantial disadvantage by the policy and therefore, that the duty to make reasonable adjustments was not engaged.

The Claimant appealed, on the basis that the correct PCP was the application of the policy resulting in her dismissal, not simply the terms of the policy, which depending on their application could result in a variety of outcomes (which may or may not place a disabled employee at a substantial disadvantage compared with non-disabled employees). The Employment Appeal Tribunal (EAT) agreed with the Claimant that the application of the absence management policy resulting in the Claimant’s dismissal did amount to the application of a PCP which placed her as a disabled employee at a substantial disadvantage because there was an increased likelihood that disabled employees would have a higher level of absence and therefore be dismissed.

On the facts of this case, the employer had made reasonable adjustments and ultimately the Claimant’s claims failed.  However noting that “even lawyers can falter when identifying the correct PCP” this case is a helpful reminder that care must be taken to correctly identify the PCP at the outset to determine if the duty to make reasonable adjustments arises. Identifying the PCP is the first stage; the second stage is to determine whether the application of that PCP places disabled employees at a substantial disadvantage – there must be a causal link; the third stage is to consider what adjustments could alleviate that disadvantage, and the fourth stage, is to consider whether or not it is reasonable for the employer to make that/those adjustments.

When applying standard procedures to disabled employees, it is still important for Employers to consider the individual circumstances of the employee, and whether they are placed at a substantial disadvantage by the application of the standard procedure, compared to non-disabled employees. If so, the duty to make reasonable adjustments is engaged.

If you have any questions about this topic, please contact Emma Sangeelee or any member of the Employment team.

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