Foster v Cardiff University

For the duty to make reasonable adjustments, a tribunal must identify the effects of the claimant’s disability. It need not investigate its causes. Anxiety or stress which triggers or exacerbates a condition is not itself part of the disability unless it forms part of the relevant impairment.

The duty under section 20 of the Equality Act 2010 requires a substantial disadvantage caused by a provision, criterion or practice in comparison with persons without the relevant disability. A hypothetical comparator may be used. That comparative approach is compatible with Articles 2 and 5 of Council Directive 2000/78/EC.

The claimant, a university academic with Chronic Fatigue Syndrome, alleged disability discrimination, failure to make reasonable adjustments and harassment concerning her teaching allocation for the 2010–11 academic year.

The Employment Tribunal at Cardiff unanimously dismissed all claims in a decision sent to the parties on 2 May 2012. On appeal, the claimant principally contended that the Tribunal had wrongly excluded anxiety and stress from its assessment of her disability and had wrongly required comparison with a person without the disability when considering reasonable adjustments.

The central issues were the proper focus of the definition of disability and whether the reasonable-adjustments duty required a comparator consistently with Council Directive 2000/78/EC.

1. Appeal dismissed. None of the grounds disclosed an error of law in the Employment Tribunal’s careful and fact-sensitive decision.

2. The relevant disability was Chronic Fatigue Syndrome. The Tribunal correctly concentrated on its functional effects, including the claimant’s difficulty in coping with teaching. Anxiety and stress could trigger or exacerbate the condition, but they concerned its cause rather than its effects. They were not an additional disability requiring adjustment, since there was no anxiety disorder. The court applied the effects-based approach endorsed in Chief Constable of West Midlands v Gardner.

3. The Tribunal correctly required a provision, criterion or practice to put the claimant at a substantial disadvantage compared with persons without the relevant disability. Disadvantage is necessarily comparative, and the comparator may be hypothetical. This approach under section 20 of the Equality Act 2010 was consistent with Articles 2 and 5 of Council Directive 2000/78/EC. Article 5 provides reasonable accommodation to secure equal treatment; read with Article 2, it addresses disadvantage caused by an apparently neutral provision, criterion or practice when compared with other persons.

4. The remaining grounds challenged factual evaluation rather than legal error. The Tribunal had not misunderstood the chronology of medical evidence, had considered the loss of alternative teaching provision when assessing the eventual teaching allocation, and could conclude that the adjustments offered were reasonable. Its assessment of the alleged harassment was also open to it after hearing the witnesses and preferring Professor Davies’s account.

• Employment Appeal Tribunal: Appeal dismissed: [2013] UKEAT 0422_12_2703.
• Employment Tribunal at Cardiff: By a unanimous decision sent on 2 May 2012, dismissed the claimant’s complaints of disability discrimination and harassment.