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Employment Law

Legal guidance - compliance - software

Guildhall Chambers , 08 SEP 2015

Is it time for the broadening of Reasonable Adjustments protection?

Geraint  Probert

Employment & Discrimination Pupil

Is it time for the broadening of Reasonable Adjustments protection?

It has always struck me as odd that the obligation for an employer to make reasonable adjustments only extends to such steps as necessary to alleviate the substantial disadvantage caused by a PCP to a disabled person rather than a person with a different protected characteristic. For example, why is it that an employer is not required under the same provision to make reasonable adjustments on the basis of age, religion or sex, if there is evidence that a certain PCP is causing a person with those protected characteristics a substantial disadvantage?

The situation as the law presently stands clearly places “disability” as a protected characteristic at a higher degree of protection than the other characteristics listed in s.4 Equality Act 2010 (EqA). As well as being covered by s.13 and s.19, disabled claimants enjoy the double-additional protection of s.15 and the s.20 duty. A disabled claimant is provided with a spectrum of choice when bringing a Tribunal claim, a choice that is simply not available for persons with other protected characteristics (with the exception of the limited examples in ss.16, 17 and 18 EqA).

Why isn’t the duty to make reasonable adjustments extended to other protected characteristics in the Equality Act? One explanation may be that the clear physical applications that can often alleviate disadvantage to a disabled employee make disability the appropriate sole-custodian of the duty. This disregards however the plain reality that the substantial disadvantage faced by other protected characteristics can have physical manifestations. The truth is that this argument is effectively saying that extending the duty to make reasonable adjustments is too difficult to be handled in any sphere other than disability, and it is therefore safer and easier to stick with a disability-only regime.

Another justification forwarded is that the other protected characteristics are sufficiently protected by the provisions of s.19. For example, if a company brings in a policy to only provide wage slips via email, thereby having causing a particular disadvantage to its employees who are over the age of 60 because statistical evidence was produced to show that those over that age were less likely to have access to electronic wage slips. It is said that the employee in this case could bring a s.19 claim, thereby making an additional option of a s.20-type claim unnecessary.

However, is a claim for indirect discrimination even a realistic option anymore? I do not think that there is anything wrong with the range of options available to a disabled claimant, but the question why is it only disability that is provided this higher degree of protection seems compelling to me, especially in the light of the continued and potentially fatal undermining of the protection potentially provided by s.19 indirect discrimination as applied by the EAT and the Court of Appeal.

The effect of Essop

In Home Office (UK Border Agency) v Essop [2015] IRLR 724, the Court of Appeal confirmed the construction of s.19 as incorporating a further potential hurdle for claimants. In upholding the Tribunal’s original decision to dismiss the claimants’ claims for indirect discrimination, the Court of Appeal held that the claimants must establish that the “reason why” for the particular disadvantage was because of the PCP. Evidentially this means that the claimant has a high hurdle to cross; not only must they prove group disadvantage, but that in fact they were personally disadvantaged by the PCP. The Court of Appeal seems to have been influenced in their determination by the fact that a claim of direct discrimination under s.13 also poses a “reason why” question. Although the s.13 and s.19 “reason why” questions are different in substance, the effect of the requirement in an indirect discrimination context produces a potentially fatal evidential barrier for an employee, which none but the most well-supported group action or lobby group could hope to cross. Therefore, indirect discrimination for the individual claimant seems dead in the water.

Given that most practitioners now consider an indirect discrimination claim to be a forlorn hope, there seems to be scope to readdress the widening gap in equality protection afforded to those employees with the protected characteristic of disability compared with those with another protected characteristic. If the existence of s.19 was the justification for limiting the duty to make reasonable adjustments to disability-only, what of this justification now that s.19 has apparently evaporated?
It seems to me to be both fair and sensible for the duty to make reasonable adjustments to be extended to include other protected characteristics for the following principal reasons:

a. Firstly, there can be no justification why disability is treated more favourably than other protected characteristics such as sex, race or sexual orientation. The Equality Act’s purpose is, inter alia, to eliminate discrimination, promote equality of opportunity, reduce the inequalities of outcome which result from socio-economic disadvantage and to harmonise the equality legislative framework. This purpose is being frustrated by current in-equality of treatment between protected characteristics.

b. There is a widening gap between the protection afforded to disability and the other characteristics. The removal of a s.19 claim as a viable option severely limits an employee’s protection and widens this gap.

c. The restrictive development of indirect discrimination has left the prospective claimant with effectively one option: a claim for direct discrimination. It is common ground that direct discrimination can be very difficult to prove. The most likely effects therefore are that claimants will find it more difficult to raise discriminatory complaints in the Tribunal and, consequently, employers will have far greater impunity to act in indirect ways to achieve discriminatory ends.

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Therefore, the case to widen the scope of the duty to make reasonable adjustments becomes increasingly compelling. As we know there is form of equality legislation being reformed in the light of narrow judicial interpretation. Following the House of Lords decision in Lewisham London Borough Council v Malcolm [2008] 1 AC 1399, it was widely accepted that a whole head of claim under the Disability Discrimination Act 1995, discrimination that arose for a reason “relating to disability”, was decisively holed below the water-line. In the subsequent political reaction, s.15 EqA was established to circumvent the effect of the Malcolm comparator.

It remains to be seen whether there is such legislative appetite for such reform of the Equality Act in reaction to the downing of indirect discrimination like there was in response to Malcolm. It strikes me though that it must become obvious sooner or later that the Equality Act as interpreted by the courts and tribunals is not functioning in a way as to further its stated aims.

Eweida and Indirect Discrimination

In terms of the judiciary, Sir Patrick Elias, in an article (Equal Opportunities Review, Issue 222, 24 February 2012) following the decision in Eweida v British Airways plc [2010] IRLR 322, expressed a view that supported the widening of the concept of the duty to make reasonable adjustments:

“I have always felt that it is a weakness of discrimination law that it does not provide for reasonable adjustment in this field (protected characteristic of religion or belief) but a very similar principle operates under Article 9...”

In Elias LJ’s view, the protection currently afforded by equality legislation (derived from EU directives), falls short of that provided by the European Convention and the Human Rights Act 1998. Elias LJ points out that where as the claim for indirect discrimination
in Eweida failed because of lack of evidence to establish group disadvantage,

“by contrast, the Article 9 right can apply to a particular belief even if it is only held by the claimant alone. In this respect it provides a protection that is closer to the concept of reasonable adjustment which is found in disability discrimination law; allowance should be made to cater for the particular needs of individuals.”

Therefore, it is clear that the development of Article 9 of the Convention has produced a cause of action which is like pseudo-reasonable adjustments. It seems strange that this position, based on the principle of proportionality, is present in the jurisprudence of the Convention whilst not in the EU directive-derived discrimination law of the UK. EU-derived legislation frequently relies on concepts of proportionality; why then is the UK’s domestic position different?

Conclusion

It becomes apparent that there is not only a widening of the gap between the protection afforded to disability and the other protected characteristics, but also a divergence in the development of Convention rights compared with UK equality legislation. Both of these issues could be fully remedied by the reform of the duty to make reasonable adjustments to include protected characteristics other than exclusively disability.

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