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The duty to make reasonable adjustments

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The recent decision of the Court of Appeal in Royal Bank of Scotland Group Plc v Allen may help to clarify some conflicting decisions of the Employment Appeal Tribunals on an employer's duty to make reasonable adjustments under the Disability Discrimination Act 1995 ("DDA").

The Law

Under the DDA sections relating to the provision of goods and services state that a service provider has a duty to make reasonable adjustments where a physical feature of its building makes it impossible or unreasonably difficult for a disabled person to make use of its services. However, the service provider can argue that the treatment is justified if it is of the opinion that one or more of various conditions set out in the DDA is applicable and it is reasonable, in all the circumstances, for it to hold that opinion.

Under the DDA, employers also have a duty to make reasonable adjustments where any physical feature of premises occupied by the employer, places a disabled person at a substantial disadvantage in comparison with persons who are not disabled. However employers cannot argue justification as a defence.

Employment Appeal Tribunal Judgments

The Employment Appeal Tribunal has made conflicting decisions about what will determine whether an employer has acted reasonably in respect to making reasonable adjustments for a disabled employee.

For example, in the case of British Gas Services Ltd v McCaull, the Employment Appeal Tribunal held that it was what an employer did or did not do which would determine reasonableness, not whether an employer had considered making a reasonable adjustment (and consulted with the employee). If there was no reasonable adjustment which could be made, then there would not be a breach of the DDA whether or not the employer had failed to consult the relevant employee.

In contrast, in Mid-Staffordshire General Hospitals NHS Trust v Cambridge, the Employment Appeal Tribunal did not consider McCaull and judged that without consideration of the necessary adjustments (by consultation with the disabled person) a proper assessment of what adjustment needs to made, cannot take place. It held that the duty to make reasonable adjustments would require an employer to consider the adjustments and consult with the employee. However, in the later case of Tarbuck v Sainsbury's Supermarket Ltd, the Employment Appeal Tribunal reverted back to the approach taken in McCaull.

Royal Bank of Scotland Group Plc v Allen

The case concerned Mr Allen, who suffers from Duchenne Muscular Dystrophy and who has used a wheelchair from an early age. Mr Allen opened an account with the Royal Bank of Scotland (the "Bank") in the centre of Sheffield.

The building in which the branch is located was built in the 19th century and is listed. Its two customer entrances are accessed by stone steps. It is therefore inaccessible to wheelchair users. Mr Allen's mother complained to the Bank of the inaccessible nature of the building which prevented Mr Allen from gaining access to the banks services. The Bank suggested a number of alternatives including; that Mr Allen use the staff entrance (which was also inaccessible to him) and that Mr Allen use a combination of the Bank's telephone and internet banking services.

On 20 August 2007, Mr Allen commenced proceedings against the Bank for breaching its duty under the DDA to make reasonable adjustments without justification.

The Bank had been presented with two options by which it could make adjustments to allow Mr Allen (and other wheelchair users) access to its branch. The first of these involved the installation of a platform lift in its lobby. The Bank rejected this because it did not allow for the required turning circle and would require alterations to incoming gas and waters mains as well as internal services. The second option which was recommended by the joint expert, involved the installation of a platform lift in the banking hall (the "Owen Scheme"). The Bank also rejected this option as it would necessitate the loss of one of eight of its interview rooms.

The County Court judge held that that Bank had discriminated against Mr Allen by failing to make reasonable adjustment.  Mr Allen was awarded £6,500 for injury to feelings and the Bank was ordered to install the platform lift in accordance with the Owen Scheme which is likely to cost the Bank approximately £200,000.

Appeal

The Bank appealed raising numerous criticisms about that way in which the County Court judge had interpreted the relevant provisions of the DDA. The Court of Appeal upheld the County Court judges' decision and confirmed its order that the Bank should install the platform lift in accordance with the Owen Scheme. This decision was not unexpected.

However, interestingly, the Court emphasised that what is reasonable must be considered objectively. In particular it stated that in judging whether a service provider had unlawfully discriminated against a disabled person by failing to make a reasonable adjustment, it was the service provider's actions upon which the decision should be based.

The Court of Appeal's decision therefore lends support to the approach taken by the Employment Appeal Tribunal in the cases of Tarbuck and McCaull and may help to clarify the issue for employers. However, in Tarbuck the Court emphasised that service providers (and by analogy employers) would not be able to rely on ignorance of the adjustment which needed to be made in order to accommodate a disabled person. It would therefore still be advantageous for service providers and employers alike to consider and discuss any reasonable adjustments with the disabled person in question.

Summary

The support provided by the Court of Appeal in Allen to the Employment Appeal Tribunal's decision in Tarbuck suggests that the approach in the case of Mid-Staffordshire is unlikely to be followed in future. Whether an employer has acted reasonably is likely to be judged on its actions rather than what it may have considered. However, employers would be well advised to discuss any adjustments which a disabled person may need with that individual and consider these fully.

In addition, although the cost of installing the lift was not put forward as justification by the Bank in Allen, the Court's decision highlights the fact that the cost to a business of a reasonable adjustment under the DDA is unlikely to prevent either a Tribunal or a County Court from judging that an employer or a service provider, respectively, has discriminated.

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