Royal Bank of Scotland v Ashton

Under the Disability Discrimination Act 1995, a reasonable-adjustment claim requires identification of the provision, criterion or practice, the substantial disadvantage caused in comparison with non-disabled persons, and an objectively reasonable step capable of preventing that disadvantage. The inquiry concerns practical effect, not the employer’s decision-making process. In sick-pay cases, enhanced or continued pay will ordinarily not establish substantial comparative disadvantage where the disabled employee receives at least as favourable an entitlement. Disability-related discrimination requires a comparator in the same relevant circumstances but without the disability. A predictable and curable absence may not be comparable with intermittent and uncertain disability-related absence. Statutory justification requires a reason that is material and substantial, not merely reasonable.

The Royal Bank of Scotland appealed the Manchester Employment Tribunal’s decision of 7 October 2009, which upheld Miss Ashton’s claims for failure to make reasonable adjustments, disability-related discrimination and unpaid wages. A conjoined appeal concerned remedies. The dispute arose from disciplinary action and withdrawal of sick pay under a sickness-absence policy after intermittent disability-related absence. The Employment Appeal Tribunal considered whether the Tribunal had identified a substantial comparative disadvantage, applied the objective reasonable-adjustment duty, selected a valid comparator, and applied the statutory justification test.

The appeal and the conjoined remedies appeal were allowed. The Employment Tribunal’s decision was reversed and the claim was dismissed.

1. Under sections 3A(2), 4A and 18B of the Disability Discrimination Act 1995, the Tribunal had to identify the relevant provision, criterion or practice, the substantial disadvantage suffered in comparison with non-disabled persons, and the reasonable steps capable of preventing that disadvantage. Disadvantage was necessarily comparative. The Tribunal had not identified the disadvantage or the relevant comparator class. It therefore could not assess whether any proposed adjustment would remedy it.
2. The reasonable-adjustment inquiry was objective and concerned practical effect. The employer’s reasoning process, consultation, delay, or failure to appreciate the statutory duty was ordinarily irrelevant. This was confirmed by Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664, Spence v Intype Libra Ltd [2007] UKEAT/0617/06, Hay v Surrey County Council [2007] EWCA Civ 93 and Romec Ltd v Rudham UKEAT/0069/07. The Tribunal had wrongly focused on the manager’s decision-making process.
3. The sick-pay claim faced the difficulty identified in O’Hanlon v Revenue and Customs Commissioners [2007] EWCA Civ 283. A successful claim would require exceptional particular features showing substantial comparative disadvantage. The evidence showed that the Claimant had not exhausted her full sick-pay entitlement and had received substantially extended trigger points. No such feature existed.
4. For disability-related discrimination, the comparator had to be in the same relevant circumstances but without the disability, applying Lewisham London Borough Council v Malcolm [2008] UKHL 43. Employee X was herself likely to be disabled. In any event, her predictable absence and favourable prognosis differed materially from the Claimant’s intermittent, unpredictable absence and uncertain prognosis. The Tribunal’s comparison with general workforce evidence was also defective.
5. Justification under section 3A(3) required a reason materially connected with the circumstances and carrying real weight, applying Post Office v Jones [2001] EWCA Civ 558. The Tribunal had instead asked whether the employer acted reasonably. There was no arguable case of either disability-related discrimination or failure to make reasonable adjustments. The claim, including the unpaid-wages claim and remedies appeal, was dismissed.

• Employment Appeal Tribunal: Appeals from the Manchester Employment Tribunal’s merits decision of 7 October 2009 and the subsequent remedies decision were allowed. The decision was reversed and the claim dismissed.
• Employment Tribunal, Manchester: Claims for failure to make reasonable adjustments, disability-related discrimination and unpaid wages were upheld.