Rakova v London North West Healthcare NHS Trust

A requirement that employees use an employer’s conventional software can be a provision, criterion or practice even where adjustments have been made for a particular disabled employee. The practice continues to apply so far as those adjustments do not work.

Reduced efficiency may constitute a substantial disadvantage if disability makes an employee less productive than relevant non-disabled colleagues. The question is whether the disadvantage is more than minor or trivial, not whether the adjustment would improve efficiency. A tribunal must identify both the PCP and the nature and extent of the disadvantage before assessing reasonable steps. Where software is a reasonable adjustment, the continuing duty may require reasonable necessary updates and maintenance.

The Claimant, a clinical nurse specialist with Ehlers-Danlos Syndrome, dyspraxia and dyslexia, brought claims including disability discrimination by failure to make reasonable adjustments under the Equality Act 2010. The Employment Tribunal at Watford dismissed all claims in a reserved judgment sent on 5 April 2018.

Her appeal concerned three reasonable-adjustment complaints: the requirement to use conventional software; the failure to provide specialist software updates; and lack of guest Wi-Fi access for her laptop. The central issues were whether the alleged software requirement was a PCP, whether reduced efficiency could amount to substantial disadvantage, and whether the Tribunal had properly assessed continuing adjustments.

1. Appeal allowed. The three reasonable-adjustment complaints were remitted to the Watford Employment Tribunal.
2. The Tribunal erred in treating the alleged PCP concerning conventional software as a practice referable only to the Claimant. Her case concerned the general requirement that staff use the Respondent’s conventional software. That requirement could apply to her before adjustments were made and whenever the adjustments did not function properly.
3. Under sections 20 and 21 of the Equality Act 2010, the duty arises where a PCP places a disabled person at a substantial disadvantage. By section 212, substantial means more than minor or trivial. The Tribunal wrongly proceeded on the premise that an adjustment which would make the Claimant more efficient could not address substantial disadvantage. Disability-related reduced productivity may itself be a substantial disadvantage; the Tribunal had to determine whether that was so on the facts.
4. Following Environment Agency v Rowan [2008] ICR 218, the Tribunal had to identify both the PCP and the nature and extent of the disadvantage before deciding what steps were reasonable. Its alternative conclusion that the Respondent had taken all reasonable steps could not stand because it had not made that prior assessment.
5. The same error affected the software-update complaint. If particular software was a reasonable adjustment, the duty was continuing and could include reasonable updates needed for the software to function fully. Characterising the issue as maintenance did not provide a safe alternative basis for rejecting the complaint.
6. The Wi-Fi complaint was also affected by the erroneous approach to efficiency. The Tribunal’s alternative conclusion that any disadvantage was brief was unsafe because it had not engaged with its earlier findings that a broader Wi-Fi-access issue had been raised in April 2015.
7. The EAT remitted the three issues. It left the composition of the remitted panel to the Regional Employment Judge, who could decide whether the matters should be heard with the Claimant’s later dismissal claim.

• Employment Appeal Tribunal: appeal allowed and three reasonable-adjustment complaints remitted to the Watford Employment Tribunal.
• Employment Tribunal (Watford): by a reserved judgment sent on 5 April 2018, dismissed the Claimant’s disability-discrimination, harassment and victimisation complaints.