Shah v TIAA Limited - Discrimination: reasonable adjustments

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.

Organisations are required to take reasonable steps where a provision, criterion or practice (PCP) puts a disabled person at a substantial disadvantage in comparison with people who are not disabled to remove this disadvantage. The Equality Act 2010 does not allow an organisation to justify a failure to comply with this duty, but the adjustment in question needs to be one which it is reasonable for the business to make.

It is also unlawful to treat a disabled person unfavourably because of something arising in consequence of their disability. It is, however, possible to justify such treatment it if can be shown to be a proportionate means of achieving a legitimate aim.

FACTS

The claimant in this case was disabled for the purposes of the Equality Act 2010 as a result of severe back problems. She worked as an audit manager for the organisation, which involved travelling to client locations. Her annual salary was calculated through a ‘chargeable days per year’ target. In short, in order for the organisation to not be paying her at a profit detriment, she needed to hit a target of 150 days per year.

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 and 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 going forward.  

Meetings where 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 could not work from home full time as a major part of her role did involve travelling and direct client interactions, and there were not enough clients near to her home. Therefore, the organisation did not agree to let her work from home as a reasonable adjustment.

After the claimant rejected alternative job roles, which would have also involved travelling, she was dismissed on the grounds of capability. She later brought numerous claims to the employment tribunal (ET) including discrimination arising from a disability and failure to make reasonable adjustments.

ET

Ultimately, the tribunal dismissed all of her claims, addressing each one in turn.

Regarding reasonable adjustments, the tribunal did agree that the PCP which required all audit managers to travel placed the claimant at a disadvantage as a result of her disability. However, permitting her work from home would have placed the organisation at a deficit and therefore could not be considered reasonable.

The claimant had also not been subjected to discrimination arising from a disability as 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, which was to have an audit manager capable to visit clients and conduct their role. The dismissal was also proportionate to the situation as the organisation had investigated the matter, obtained medical evidence and considered reasonable adjustments before making this decision.

EAT

The claimant appealed to the Employment Appeal Tribunal (EAT) but was ultimately unsuccessful.

Although she argued that the organisation had failed in their duty to make reasonable adjustments as they had not 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 as she did not want to see a corresponding reduction in her pay. The EAT held that there was no adjustment put forward by the claimant that would not have resulted in a loss for the organisation.

She also claimed that the tribunal failed to take into account the actions of the organisation in response to other audit managers who had registered similar concerns with not meeting their targets. Again, the EAT did not uphold this argument. The tribunal had identified the other situations, but had also pointed out that her circumstances were much more significant.

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