Newcastle Upon Tyne Hospitals NHS Foundation Trust v Bagley

A reasonable-adjustments claim requires precise identification of an employer’s provision, criterion or practice, a substantial disadvantage caused by that practice, and a comparison with persons who are not disabled. It is not enough to criticise an employer’s general handling of an employee’s case or to show that a practice affects a high proportion of disabled people.

A financial difficulty arising from an employee’s personal circumstances does not establish the required comparative disadvantage where a non-disabled employee could be affected in the same way. The duty will not ordinarily require an employer to make additional payments under a pay or sickness policy.

The claimant, a radiographer, suffered an injury at work and later became disabled. She made a phased return to work but resumed long-term sick leave. She alleged that the Trust failed to make reasonable adjustments by not supplementing pay during part-time work, by its handling of her Permanent Injury Benefit application, and by its Human Resources practices.

The Employment Tribunal upheld aspects of the claim under the Disability Discrimination Act 1995. It awarded £30,000 for injury to feelings and £10,000 aggravated damages, while deferring other loss issues because of contemplated civil proceedings.

The Trust appealed. The central question was whether the Tribunal had identified genuine PCPs which caused a substantial comparative disadvantage and, alternatively, whether its non-pecuniary awards were lawful.

1. Appeal allowed. The Tribunal erred in law in allowing the reasonable-adjustments claim. It had not identified genuine PCPs capable of founding the statutory duty. Its broad criticism of the Trust’s treatment of the claimant, including alleged inefficiency in handling benefit applications, was a description of events in this case rather than a provision, criterion or practice.

2. The statutory inquiry required an identified PCP, substantial disadvantage to the disabled employee, comparison with non-disabled persons, and reasonable steps capable of preventing that effect. The Tribunal instead used an impermissible statistical or indirect-discrimination approach when it treated the fact that predominantly disabled people might need Permanent Injury Benefit as sufficient.

3. The policy of paying employees for work performed did not place the claimant at a comparative disadvantage. A non-disabled employee returning part-time for other reasons would also receive pay only for the hours worked. The claimant’s inability to sustain part-time work stemmed from her personal financial circumstances, not from disability-related comparative disadvantage. The requirement for a permanent reduction in hours before a benefit application was processed was that of the NHS Pensions Division, not a PCP imposed by the Trust.

4. Accordingly, the EAT substituted dismissal of the claim under section 4A of the Disability Discrimination Act 1995.

5. Alternatively, had liability remained, £30,000 injury to feelings was excessive. Applying the Vento guidance as uplifted in Da'Bell, the appropriate award was £11,000. Applying Commissioner of Police of the Metropolis v Shaw, aggravated damages are compensatory and depend upon additional distress caused to the particular claimant, not punishment for objectionable conduct. No aggravated award was justified, so the £10,000 award would have been reduced to nil.

• Employment Appeal Tribunal: allowed the Trust’s appeal and substituted dismissal of the reasonable-adjustments claim under section 4A of the Disability Discrimination Act 1995.
• Employment Tribunal, Newcastle: found failures to make reasonable adjustments and made an interim award of £30,000 injury to feelings, £10,000 aggravated damages, and interest. Remaining remedy issues were adjourned.