Disability Discrimination

The Employment Appeal Tribunal (EAT) has confirmed, in Newcastle upon Tyne Hospitals NHS Foundation Trust-v-Bagley, that delays to Permanent Injury Benefit (PIB) and inadequacies in processing a PIB application do not constitute failures to make reasonable adjustments.

Background

Mrs Bagley, a Radiographer, suffered an arm injury at work in 2008. That injury constituted a disability within the meaning of the Disability Discrimination Act (now the Equality Act). She received Temporary Injury Allowance (TIA) (which tops up sick pay to 85% of salary in the case of work-related injuries) and some Industrial Injury state benefits until March 2009, when Occupational Health recommended a phased return to work. During that phased return, Mrs B supplemented her income using accrued (paid) annual leave, as TIA is not payable if staff are working.

Mrs B was concerned that she would not be able to return to work full-time and would face a drop in her earnings. Her financial circumstances precluded her from agreeing to part-time work.  She therefore went on to request Permanent Injury Benefit (PIB) (this tops up salary to a maximum of 85% and is payable by the NHS Pensions Agency, if an injury causes termination of employment or a permanent reduction in earning ability).

Subsequently, Mrs B went on sick leave and again received TIA.  In the meantime, her PIB application was incorrectly processed by the Trust, causing some delays.  Due to her continuing sickness absence, Mrs B was referred to Occupational Health and there was some exploration of redeployment but her health had worsened and, by August 2012, Mrs Bagley was unfit for work of any sort.   Upon the consequent termination of her employment, Mrs B’s TIA ended and she received PIB.  Mrs B brought an ET claim of disability discrimination including a claim for a failure to make reasonable adjustments.

The Employment Tribunal (ET) found that the Trust had failed to make a number of reasonable adjustments including:

  • Paying TIA or PIB or an equivalent to supplement her earnings during her phased return;
  • Permitting PIB applications to be undertaken by junior staff and not chasing up matters; and
  • Failing to support Mrs B “through a maze of policies”.

The ET went on to find that Mrs B was entitled to £30,000 compensation for injury to feelings and a further £10,000 in aggravated damages on the ground that the Trust had acted in a high handed manner by failing to admit she was disabled until six months after the ET1 was submitted.

The Trust appealed to the EAT, which upheld the appeal. The EAT found that the Trust had not failed to make reasonable adjustments and also that the ET had made an excessive and disproportionate award to Mrs B.

The EAT reiterated that the duty to make reasonable adjustments is a duty to “assist a disabled person” but to take steps to stop or overcome any substantial disadvantage suffered by the application of a “provision, criteria or practice” (PCP). Where a non-disabled person is affected by the PCP in the same way, there is no comparative disadvantage and no duty to make reasonable adjustments.

The EAT found that treating a PIB application as routine and allocating them to a junior employee could not “sensibly be said to be a PCP at all”. There was no disadvantage to Mrs B in the delays in processing her PIB application – she was still in receipt of TIA and a return to work was available.

In relation to the alleged PCP (failing to supplement part-time earnings during a phased return), the EAT confirmed there was no failure to make a reasonable adjustment.  Mrs B was in the same position as anyone else wanting to return to work part-time and paying her 85% of her salary for 60% of her working time was not reasonable due to the implications for other employees working part-time.  Mrs B, of course, had not returned to work part-time due to her financial circumstances.

The EAT also found that the ET awards were excessive or perverse and that the ET had taken a disproportionate view of the Trust’s actions.

Comment

The EAT decision is welcome news to employers as it reiterates other recent decisions on the scope of the duty to make reasonable adjustments, specifically that this does not involve a general duty to support disabled staff.

In addition the case confirms that inefficiency by an HR department is unlikely to amount to a PCP, and in any event such an issue would affect disabled and non-disabled staff in the same way. Further, the offer of a phased return to work (customary in long-term absence situations) may be a reasonable adjustment but that does not mean employers have to pay staff for their normal hours (i.e. for work they do not do).