Watkins v HSBC Bank Plc

A proposed reasonable adjustment is not confined to a response to an existing difficulty. Active management support, supervision or monitoring may be a reasonable step under section 20(3) of the Equality Act 2010 where it is capable of preventing a recurrence of disability-related disadvantage.

Consultation or assessment alone will not ordinarily remove the disadvantage, but an employer’s failure to provide the resulting practical support may do so. A claim should not be struck out where that distinction is reasonably arguable.

For limitation purposes, the tribunal must focus on whether the employer’s alleged conduct extended over a period. A continuing failure to make an adjustment may instead engage section 123(3)(b) and (4). When considering a just and equitable extension, relevant impairment and the balance of prejudice require consideration.

The claimant, an employee with epilepsy, alleged that the respondent failed to make reasonable adjustments. His principal complaint was that, following occupational-health recommendations, his work activity and workflow should have been monitored so that he did not take on excessive work.

At a preliminary hearing, the Employment Judge struck out the in-time allegations concerning post-return-to-work workload monitoring and informing the claimant’s manager of his epilepsy. The Judge also held earlier allegations out of time and refused a just and equitable extension. The claimant appealed against those rulings.

The central issues were whether active workload monitoring was capable of being a reasonable adjustment, and whether the limitation and extension-of-time issues had been approached correctly.

1. Appeal allowed. The Employment Judge erred in striking out the allegation that the respondent should have monitored the claimant’s work activity and workflow after his return to work.

2. Section 20(3) of the Equality Act 2010 is not to be applied narrowly. Although consultation or an assessment alone is not ordinarily a step which removes a substantial disadvantage, practical managerial support, enhanced supervision or monitoring may be such a step. The occupational-health recommendation concerned active support to prevent the claimant taking on too much work. It was therefore at least reasonably arguable that it was a reasonable adjustment.

3. An adjustment may prevent a recurrence of disability-related difficulty as well as alleviate a present difficulty. The claimant’s improved condition on returning to work did not justify striking out a claim that monitoring was needed to prevent deterioration. The proposed PCP was not decisive; workplace demands were capable of amounting to a PCP causing disadvantage.

4. The strike-out of the separate allegation that the respondent should inform the claimant’s manager of his epilepsy was upheld. The claimant could and did inform the manager himself, and the material issue was what the manager did with that knowledge.

5. The limitation ruling could not stand. In considering section 123(3)(a), the tribunal should have addressed whether the respondent’s alleged failure to provide support extended over a period, rather than treating the claimant’s absence from work as a factual gap. On the pleaded case, section 123(3)(b) and (4), concerning a failure to act, might instead apply.

6. The refusal of a just and equitable extension also required reconsideration. The claimant’s mental impairment was a relevant factor even if it did not prevent proceedings altogether, and the Reasons contained no balancing of prejudice. All time issues were remitted to a different Employment Judge for a fresh determination.

• Employment Appeal Tribunal: Allowed the appeal, upheld only the strike-out of the manager-notification allegation, and remitted the workload-monitoring and limitation issues to a different Employment Judge.

• Employment Tribunal: Employment Judge Dimbylow, following a preliminary hearing on 18 March 2016, dismissed parts of the disability-discrimination claim as out of time and struck out other parts as having no reasonable prospect of success.