Consideration of reasonable adjustments as part of a performance management process – a helpful reminder!
The recent Employment Appeal Tribunal (‘EAT’) case of South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley serves as a reminder to employers to make reasonable adjustments during a performance management process and also to give them a chance to work. It also neatly summarises the extent of the duty to make reasonable adjustments.
The Claimant, who worked as a Data Input Clerk, was dyspraxic; this is a condition which affected her physical coordination. Her condition impaired her ability to absorb, retain and process information, and this led to her being slower in her work and being more error prone. The Claimant’s data input error rate was significantly higher than that of her colleagues. In 2009, the Respondent was advised by a private consultation company that the Claimant would benefit from an initial 50 hours of speciality training from a dyspraxia tutor and the provision of technical aids.
Informal performance management commenced, though at this stage none of the recommendations from the 2009 report had been implemented. An Access to Work assessment undertaken in October 2011 confirmed that the Claimant required specialist tuition (it recommended 40 hours) and made some other recommendations. The Respondent arranged for the Claimant’s supervisor to provide additional training and tuition for the Claimant. Following this extra tuition, the Claimant’s error rate did improve.
In March 2012, the Respondent advised that it would fund the recommendations within the Access to Work report and that it would then monitor her performance. By September 2012, the Claimant received the recommended technical aids and had received 20 hours tuition by her supervisor. This resulted in a significant performance improvement.
Unfortunately, her supervisor then left and her performance declined. Performance management continued and eventually the Claimant was dismissed on 18th June 2014 on the grounds of capability. The Claimant brought a claim for direct discrimination, a failure to make reasonable adjustments and unfair dismissal.
The Employment Tribunal found that the Claimant had been directly discriminated against and unfairly dismissed, but that the Respondent had not failed to make reasonable adjustments. The Tribunal found that some of the adjustments suggested were not reasonable and other aspects of this claim were out of time.
Some of the interesting Judgment points, which were upheld by the Employment Appeal Tribunal (‘EAT’) are as follows:
- The Tribunal found that the Respondent did ‘too little too late’ by way of reasonable adjustments and should not have performance managed the Claimant or dismissed her before all reasonable adjustments were implemented.
- The Tribunal confirmed that the duty to make reasonable adjustments arises where there is a chance that the adjustment would avoid the substantial disadvantage; it is not necessary to show that the adjustment would remove the disadvantage entirely.
- The Tribunal also explained that the chance of the adjustment being successful needed to be weighed against the size of the organisation, for example, where an organisation has limited resources and there is only a small chance that the adjustment would be successful, the adjustment is less likely to be reasonable.
- The Tribunal directed that the Claimant had taken very great efforts herself to improve, and that as a result of the adjustments implemented, her performance had improved. The improvement in performance as a result of some of the adjustments was important.
- The Tribunal did not agree that it was a reasonable adjustment for the Respondent to set a lower threshold of accuracy than her non-disabled colleagues.
The Respondent appealed to the EAT but the appeal was dismissed.
There are some key messages for performance management to take away from this case:
- Ensure recommended reasonable adjustments are implemented before commencing performance management, and allow for some time to see if this results in an improvement.
- Consider adjustments even if there is only a possibility that the adjustment will remove the disadvantage (resources permitting)
- Dismissal without making all reasonable adjustments is likely to render the dismissal unfair.
- Ensure recommended reasonable adjustments are implemented in a timely manner.
- Ensure than the standards of performance required are realistic and achievable.