Can there be a substantial disadvantage to a disabled employee where an absence management policy contains a discretion?

Yes, says the EAT in Martin v Swansea.

The Cardiff Employment Tribunal had erred in law in concluding that the PCP (provision, criterion, practice) asserted by a Claimant in a reasonable adjustments claim was the terms of an absence management policy only. The Claimant had in fact asserted that the application of the absence management policy placed her at a substantial disadvantage. It was not open to the Tribunal to hold that the substantial disadvantage was avoided because the absence management policy contained extra discretions for disabled employees such as being moved to an alternative role.

The application of the absence management policy and procedure put the Claimant at a disadvantage because she was at greater risk of absence than a non-disabled person and was at greater risk of dismissal. The real question in the case was whether the Respondent had taken such steps as were necessary to alleviate the disadvantage. On the facts the EAT held that it had. The Claimant’s disengagement from the process did not assist her case. The EAT concluded that the Respondent had made all adjustments that were reasonable. Appeal dismissed.

The judgment contains a salutary warning for all lawyers on the importance of identifying the correct PCP in a reasonable adjustments claim: “Even lawyers can falter when identifying the correct PCP… representatives should always consider how the PCP is pleaded with great care”.

This blog first appeared on Daniel Barnett’s Employment Law Bulletin https://www.danielbarnett.co.uk/site/mailing-list/mailing-list-signup/

Prepared by Karen Jackson, Solicitor, MD-Founder, didlaw