H Ahmed v Department for Work and Pensions

In a reasonable-adjustments claim, the tribunal must identify the employer’s provision, criterion or practice before assessing disadvantage. It should not construct the PCP from the asserted disadvantage, since that risks circular reasoning. Where an attendance policy creates disability-related absence, the tribunal must decide whether the adjustment made alleviates the disadvantage and, if not, whether a proposed or other reasonable step would do so.

Ordinary good-faith communications from a manager to HR for advice will not normally themselves amount to a substantial disadvantage. Under section 15, the tribunal must identify the something arising in consequence of disability and keep it separate from the alleged unfavourable treatment. The causal inquiry is broad and may include conduct prompted by an attempted removal of an adjustment.

The claimant, a benefits interviewer with a disability causing stress and fatigue, appealed against the dismissal of claims under sections 15 and 20 of the Equality Act 2010.

His reasonable-adjustments claims concerned absence-management triggers, flexibility over scheduled breaks, and requests to perform additional work. His section 15 claim concerned criticism communicated to HR and criticism made directly to him. The Employment Tribunal found that increasing the absence trigger from eight to 11 days was a reasonable adjustment, that the criticisms created no substantial disadvantage, and that any disability-related effect on the criticism was trivial.

The central issues were whether the Tribunal had properly identified and analysed the relevant PCPs and adjustments, and whether it had applied the correct causation analysis under section 15.

1. Appeal allowed in part. Grounds 1 and 2 failed. Grounds 3 and 4 succeeded. The successful issues were remitted to the Employment Tribunal, with the constitution of the remitted tribunal to be determined after submissions.

2. For section 20, a tribunal must first identify the PCP. A PCP is an employer’s expectation of an employee which is applied to others, or is repeated or would be repeated in respect of that employee. The statutory definition is to be construed liberally, but deriving the PCP from the disadvantage alleged risks circular reasoning.

3. The relevant absence PCP was the requirement to keep absence to no more than eight days in a rolling 12-month period. The resulting disability-related disadvantage was additional absence. The Tribunal should have decided whether the increase to 11 days alleviated that disadvantage. If it did not, it should have considered whether the claimant’s proposed adjustment, or another reasonable step, would alleviate it. It gave inadequate reasons for treating the three-day increase as reasonable, particularly without addressing evidence that failure to implement the stress-reduction plan may have contributed to the absences. The Tribunal’s factual construction of the Hickman letter was nevertheless permissible and was not perverse.

4. Good-faith communication by a manager to HR to obtain advice, without a disciplinary process or bad faith, did not put the claimant at a substantial disadvantage. Nor was any adjustment disturbed where the claimant was never required to alter his break or undertake the additional work. Grounds 1 and 2 were therefore dismissed.

5. For section 15, the Tribunal wrongly treated the alleged unfavourable treatment—criticism—as though it were the consequence of disability. It had first to identify the relevant something arising from disability, including the claimant’s reduced flexibility under adjustments and potentially his response to their attempted removal. It also failed to address that broad causal question before treating the criticism as trivial.

• Employment Appeal Tribunal: Appeal from the Employment Tribunal allowed on grounds 3 and 4, dismissed on grounds 1 and 2, and the successful matters remitted.
• Employment Tribunal: Employment Judge Butler, sitting with members, dismissed the claims after a five-day hearing in January 2019.