British Midland Airways Ltd v Hamed

An employer’s duty to make reasonable adjustments requires an active investigation of suitable alternative employment and possible modifications to available roles. The duty is not discharged by treating a disabled employee as merely absent through long-term sickness, relying on a general policy, or presenting an unexplained vacancy list. It is for the employer, with knowledge of its organisation and available work, to investigate possible roles and adjustments; the employee need not identify them. The assessment remains fact-specific. A temporary role or modified duties may be relevant, and the employer must investigate the particular circumstances before rejecting such possibilities.

British Midland Airways Ltd appealed against an Employment Tribunal decision that it had failed to comply with its duty to make reasonable adjustments under section 4A(2) of the Disability Discrimination Act 1995. The Tribunal dismissed the employee’s unfair-dismissal complaint but upheld the disability-discrimination claim.

The employee, formerly cabin crew, had a knee injury and was absent on long-term sick leave. The employer considered alternative work only belatedly and did not investigate whether available roles could be modified to accommodate her. The appeal alleged that the Tribunal applied the wrong legal test and failed to identify the necessary adjustments.

1. Appeal dismissed. The Employment Tribunal had applied the correct legal approach by examining the factual background, what the employer did, and what it failed to do. Its findings about the employer’s failure to consider disability were relevant to the reasonable-adjustments issue and did not show that it had applied the wrong test.
2. Ignorance of the Disability Discrimination Act 1995 is not a relevant answer to a failure-to-adjust claim. The employer’s lack of awareness did not remove the duty where the available facts indicated that the employee was disabled and likely to suffer the relevant disadvantage.
3. The employer had to investigate suitable alternative employment and possible adjustments. The duty was not discharged by sending the employee a list of vacancies without adequate explanation, by assuming that administrative work was unsuitable, or by waiting for the employee to identify both jobs and adjustments. Those matters were within the employer’s knowledge and responsibility.
4. A temporary ticketing role was not excluded merely because the existing posts were filled. The employer had failed to investigate whether staff absences or other features of the particular role made temporary deployment possible.
5. Where an alternative role involved duties that the disabled employee could not perform, that was not necessarily decisive. The purpose of reasonable adjustments was to accommodate an employee who could perform some tasks but not others. The employer should have explored modifications, training, supervision or other support.
6. The conclusion was fact-specific. The EAT’s function was to determine whether the Tribunal had made an error of law on the material before it, not to substitute its own assessment of the facts.

• Employment Appeal Tribunal: dismissed the appeal from the Employment Tribunal’s decision sent on 19 February 2010.
• Employment Tribunal: upheld the disability-discrimination claim under section 4A(2) of the Disability Discrimination Act 1995 and dismissed the unfair-dismissal complaint.