South Staffordshire & Shropshire Healthcare NHS Foundation Trust v Billingsley

The Employment Appeal Tribunal (EAT) has examined a failure to introduce reasonable adjustments to deal with a disability before a capability process.

The claimant was employed as a Data Input Clerk. Accuracy was essential but she suffered from dyspraxia which made her more error prone. In 2009, a recommendation for 50 hours of specialist training with a dyspraxia tutor and technical aids was ignored. A new system introduced in 2010 allowed accuracy to be monitored and, as the claimant’s error rate was significantly higher than others, an informal performance review was commenced. A request for specialist training and a further report recommending 40 hours of training was disregarded. The claimant’s error rate improved slightly and a weekly target of 0-2 errors was set. In March 2012 the claimant received the recommended aids and was given 20 hours of specialist tuition by September 2012. Although her error rate improved, she did not meet the target and was moved to a formal review procedure. From January to October 2013 the claimant was making ten times more errors than a non-disabled comparator. In June 2014 the claimant was dismissed on capability grounds.

The employment tribunal (ET) dismissed an out of time claim for failure to make reasonable adjustments. However, the lack of adjustments caused a finding of direct discrimination because of something arising from a disability. The Trust failed to provide the technical aids swiftly, and not before performance monitoring, therefore she was treated unfavourably by being subjected to reviews without adjustments. Additionally, the ET found that the extra hours of recommended training would have reduced the substantial disadvantage the claimant faced. As such, it was not reasonable necessary to dismiss until the adjustments had been implemented and the claimant was discriminated against and unfairly dismissed.

The Foundation appealed. The EAT confirmed the employee does not have to show the adjustment will avoid the disadvantage; only that there is a chance of avoidance. If so, and the adjustment doesn’t create an administrative or financial burden, it will be reasonable. As there was a chance here of avoiding the unfavourable treatment the appeal was dismissed.