Fareham College Corporation v Walters EAT/0396/08, 0076/09
disability-related discrimination | reasonable adjustments | comparators
The Employment Appeal Tribunal (EAT) has held that, in a claim of disability-related discrimination, and where the employer had failed to make a reasonable adjustment, the employment tribunal's failure to carry out a comparative exercise according to London Borough of Lewisham v Malcolm did not invalidate its decision that there had been less favourable treatment for a reason related to the employee's disability.
Ms Walters was employed as a lecturer by Fareham College Corporation. She developed a condition known as “plantar fasciitis”, which caused pain in her feet and affected her mobility. She also had fibromyalgia. She was off sick from 20 February 2006 until her dismissal on 7 September 2006. Among other claims, she brought a claim of disability discrimination. She claimed that the college had failed to make reasonable adjustments in refusing her a phased return to work. She also claimed disability-related discrimination in relation to her dismissal. Under s.3A(1) of the Disability Discrimination Act 1995 “a person discriminates against a disabled person if, for a reason which relates to the disabled person's disability, he treats him less favourably than he treats or would treat others to whom that reason does not or would not apply, and he cannot show that the treatment in question is justified”. Discrimination also occurs if there is failure to comply with the duty to make reasonable adjustments (s.3A(2)). Section 4A concerns the duty to make reasonable adjustments in relation to employment and states that “where a provision, criterion or practice applied by or on behalf of an employer, or any physical feature of premises occupied by the employer, places the disabled person concerned at a substantial disadvantage in comparison with persons who are not disabled, it is the duty of the employer to take such steps as it is reasonable, in all the circumstances of the case, for him to have to take in order to prevent the provision, criterion or practice, or feature, having that effect”.
The employment tribunal upheld Ms Walter's claim. In relation to reasonable adjustments, it held that the college had refused Ms Walters a phased return to work and that this refusal amounted to a “provision, criterion or practice” that placed her at a substantial disadvantage when compared to a non-disabled person. The college had failed to take the necessary steps to consider reasonable adjustments and was therefore in breach of its duties under s.4A of the Act. In relation to the claim of disability-related discrimination, the tribunal found that the less favourable treatment was the dismissal, which could not be justified, and the reason for this treatment related to her disability.
The college appealed. It argued that the tribunal had failed to consider the issue of the comparator in relation to the failure to make reasonable adjustments (ie whether or not the college’s refusal of a phased return to work placed Ms Walters at a substantial disadvantage in comparison with non-disabled persons), as set out by the EAT in Environment Agency v Rowan [2008] IRLR 20 EAT. The college argued that the duty to make adjustments is not a general duty but is limited to taking steps necessary to prevent the provision, criterion or practice from having the effect of placing the disabled person at a substantial disadvantage compared to non-disabled persons. In Rowan the EAT had held that tribunals considering reasonable adjustment claims should consider, among other matters, “the identity of non-disabled comparators (where appropriate)”. The EAT in this case held that the words “where appropriate” showed that the EAT in Rowan recognised that it is not always necessary to identify non-disabled comparators. The college’s like-for-like comparison with another employee who had been dismissed after a nine-month absence was misplaced in the context of a reasonable adjustments complaint. Ms Walters did not need to show that someone who did not have a disability, but whose circumstances were otherwise the same, would have been treated differently. The provision, criterion or practice identified by the tribunal was the college’s refusal to permit Ms Walters a phased return to work because it found this problematic and considered it to be an unacceptable adjustment. Therefore she was required to resume her duties in full. The comparator group was employees who were not disabled and were able to attend work and who were therefore not liable to dismissal on grounds of disability. As Ms Walters was unable to do her job because of her disability, she could not comply with the criterion and was liable to dismissal, placing her at a substantial disadvantage compared to other non-disabled employees. The EAT agreed with the tribunal reasoning on this point.
In relation to disability-related discrimination, the college argued that the tribunal had failed to consider the treatment of a non-disabled comparator, in accordance with the House of Lords judgment in London Borough of Lewisham v Malcolm [2008] IRLR 700 HL (which was decided after the tribunal decision in this case). The EAT agreed with the tribunal’s observation that it was difficult in this case to separate the failure to make reasonable adjustments from the decision to dismiss. Therefore, it also agreed with Ms Walter’s argument that the tribunal finding on this issue added nothing to the case as the dismissal was itself an unlawful act of disability discrimination due to the college’s failure to make reasonable adjustments. This was why the tribunal had found it self-evident that Ms Walters was treated less favourable than others. The tribunal’s failure to carry out a comparative exercise as required by Malcolm had no impact on the circumstances it identified. The EAT found that the tribunal was correct to find that the college’s failure to make reasonable adjustments rendered it impossible for it to justify its treatment of Ms Walters. The appeal was dismissed.
Case transcript of Fareham College Corporation v Walters (Microsoft Word format, 213K) (on the EAT website)
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