Under the Equality Act 2010, employers are expected to investigate and make reasonable adjustments to accommodate employees with disabilities. However, a recent case highlighted that where there are genuine operational and safety concerns, an employer is not guilty of disability discrimination where they fail to make such changes.
In Mahoro v The Northern Care Alliance, M worked as a biomedical scientist and was a team leader. Following an operation for a long-standing spinal issue, she returned to work under a phased return. She requested permanent reduction in her hours. The occupational health report supported this request and recommended a special chair. M’s request for reduced hours was rejected due to the inability to recruit someone else to fill the vacant hours. Several proposals were put forward, but nothing was agreed. As for the chair, the OH report recommended a chair with castors. NCA spoke to their suppliers, and they suggested that using chairs with castors in a laboratory with high work benches would represent a safety risk. They would supply the required chair but only if NCA signed a waiver. NCA considered this but concluded that this would expose them to high risk, and they refused. Further OH reports were undertaken and several non-laboratory work was trialled. NCA felt that M was only performing 1 or 2% of her team leader role. M went on sick in 2018 and did not return. Further OH reports followed and discussions about reviewing her hours and days took place to facilitate a return, including the provision of a digital microscope – but it was concluded that this device was not accurate enough and would put patients at risk.
In February 2020, NCA dismissed M on the grounds of her capability because they could not reasonably implement changes to accommodate her. M appealed unsuccessfully.
She brought claims for unfair dismissal and discrimination based on her disability. Both failed. The tribunal said NCA’s failure to adjust the hours was not unreasonable as they could not recruit anyone else to cover the vacant hours, and this would place additional and undue pressure on the other members of the team. As for the refusal to provide a chair with castors, NCA had legitimate health and safety concerns, and it was not an unreasonable refusal. Preventing the use of the digital microscope was not unreasonable either as it also presented a risk to test results and patient safety. The dismissal therefore was not discriminatory nor unfair. NCA had the right to expect M to work under her contractual duties as a team leader but as there was no way to enable M to work safely, the dismissal was a reasonable and a proportionate response. The Employment Appeal Tribunal upheld the tribunals decision and reasons.
This case highlights that refusal to make adjustments is not always automatically unfair and discriminatory. Where the employer has consulted the employee, sought medical and occupational advice and can demonstrate that they carried out genuine and objective investigations, but the adjustments could not be made because of operational, safety or cost reasons, they can defend such claims. It is important to note that employers must evidence what advice they obtained, what the recommendations were, what steps were taken to explore the viability of such advice and why adjustments could not be made.
As this area of law is fraught with complexity with potentially unlimited damages, it is important to obtain expert advice. Employers should call the HR helpline on 01455 852 028 to obtain advice and avoid problems before they escalate and prevent claims.
