Rider v Leeds City Council (Disability Discrimination)

A provision, criterion or practice is applied to a disabled employee when the employer repeatedly requires the employee to return to a specified post. Actual implementation of the return is unnecessary. If that requirement causes substantial disadvantage compared with non-disabled persons, the employer’s duty under Disability Discrimination Act 1995 arises.

The employer must explore practicable adjustments. An employee’s disability-related absence does not itself end that obligation. An assessment, consultation or investigation may assist in identifying an adjustment, but is not itself an adjustment because it does not alleviate the substantial disadvantage.

The claimant, a nursery officer with severe asthma and a spinal condition, had worked successfully on secondment away from her substantive nursery post. When that secondment ended, the Council repeatedly required her to return to Armley Moor or the Early Years service. She maintained that work with young children and the relevant environment would endanger her health. No alternative role was offered or investigated.

The Employment Tribunal dismissed claims for unfair dismissal and disability discrimination. It held that the requirement to return to Armley Moor had not been applied and that the management attendance policy caused no comparative substantial disadvantage. The claimant appealed. The central issue was whether the repeated return requirement was a PCP which engaged the duty to make reasonable adjustments.

1. Appeal allowed in part. The Employment Tribunal erred in holding that the PCP requiring the claimant to return to Armley Moor had not been applied. The Council’s letters and conduct repeatedly required her to return to that post if severance or ill-health retirement did not proceed. No alternative post had been offered or considered.

2. Under section 4A of the Disability Discrimination Act 1995, informing an employee that she must return to a particular post in due course is sufficient application of a PCP. It is not necessary that the employee has physically returned before the PCP can be applied. The Tribunal had also misconstrued the reference to investigating the claimant’s proposals: the proposals were severance and ill-health retirement, not alternative employment.

3. The claimant’s absence through disability-related sickness did not relieve the Council of its duty to explore and make reasonable adjustments. The duty lay on the employer, not the claimant, to identify adjustments. A possible continuation at Red Hall, or work outside the Early Years service, had not been considered. A post elsewhere in Early Years would in any event not necessarily have been a reasonable adjustment on the medical evidence.

4. Following Tarbuck, and preferring it to Mid-Staffordshire General Hospital NHS Trust v Cambridge, an assessment or investigation is not itself a reasonable adjustment. It may be a sensible means of finding an adjustment, and failure to investigate may prevent an employer from making one, but it does not itself remove the employee’s disadvantage.

5. The separate appeal concerning operation of the management attendance policy was dismissed. On the available evidence, the claimant had not shown substantial disadvantage compared with a non-disabled employee absent through illness and subject to that policy. The matter concerning the return-to-work PCP was remitted to a fresh Employment Tribunal.

• Employment Appeal Tribunal: Allowed the appeal concerning the requirement to return to Armley Moor or Early Years, and remitted that issue to a fresh Employment Tribunal. Dismissed the appeal concerning the management attendance policy.
• Employment Tribunal at Leeds: Dismissed the claimant’s claims for unfair dismissal and disability discrimination in a decision sent to the parties on 1 March 2011.