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Provision Criterion or Practice did not put asthmatic employee at a substantial disadvantage

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Unpicking disability discrimination is a job that even many of the best employment lawyers in London will agree is difficult. Facts can be complex and applying the law to any given situation is rarely straightforward. For many employers too, the obligations under the legislation can feel onerous, with guidance unclear. In a recent case, Browne v Commissioner of the Police for the Metropolis, which may give some comfort to employers, and which will be of interest to any Employment claim solicitors, an employee with asthma failed to convince the Employment Tribunal – and subsequently the Employment Appeal Tribunal – that she had been put at a substantial disadvantage by being required to work in an open plan office.

Substantial disadvantage and reasonable adjustments

The Equality Act 2010 contains the legal basis for any disability discrimination claim and is familiar to any UK Employment lawyer. Section 20 includes an obligation on an employer to make reasonable adjustments in a situation where a provision criterion or practice puts an employee at a substantial disadvantage in comparison with employees who are not disabled.

A provision, criterion or practice can be anything – the concept appears in indirect discrimination in respect of sex and race as well as disability, the classic example being a requirement to work full time, which indirectly discriminates against women. In the disability context, again, a provision criterion or practice can be anything the employer requires of all employees, but which puts a disabled employee at a disadvantage.

A substantial disadvantage is anything ‘more than minor or trivial’ – and which will depend on the facts in the case.

Although some UK employment lawyers will immediately focus on the duty to make reasonable adjustments, it’s vital for anyone constructing a disability discrimination claim around failure to make reasonable adjustments to first establish the provision, criterion or practice, and secondly, the substantial disadvantage, before going on to consider whether there has been a failure to make reasonable adjustments.

Asthma suffers and open plan offices

In Browne v Commissioner of the Police for the Metropolis, the Claimant, Ms Browne, had worked in the Command Control Centre (CCC) in Hendon since 2005 as an emergency call operative. The CCC was a purpose-built building and she was usually based on the first contact floor receiving incoming calls from members of the public. She sometimes worked on the dispatch floor. These were both open plan areas with significant levels of supervision imposed to maintain accuracy in receiving and recording emergency calls. She had been diagnosed with asthma in 2004, and was assessed in 2010 as having ‘moderate, persistent asthma’. In 2012, she was permanently excused night duties, on the advice of her GP and Occupational Health.

During 2013 and early 2014, she took a significant amount of sick leave, triggered, she claimed, by the open plan environment. In particular, the environment was cold, she had no control over temperature, and she was at risk from the illnesses spread by others. Between March and November 2014, she worked in a separate office. She could influence the environment using a heater and a fan but was unable to work as an emergency call operative in this office due to the supervision requirements. She returned to the open plan office but was then signed off as unfit for work in March 2015 due to asthma. In March 2016 she moved to another open plan office on the ground floor of the CCC and had no further problems. The Respondent had undertaken a variety of environmental tests in response to the claims about the impact of the building on the Claimant’s asthma. The results were all well within approved limits.

No substantial disadvantage

While the Respondent did insist on emergency call operatives working in the open plan environment (the provision, criterion or practice) for the purposes of supervision, this did not put the Claimant at a substantial disadvantage in this case. There was insufficient medical evidence provided by the Claimant to definitively attribute her ill health to the environment in the open plan areas. Further, the extensive environmental testing carried out by the Respondent showed not only that all levels were well within what was acceptable, but also that there were no discrepancies between the areas where she worked. As a result, there was no duty on the Respondent to make reasonable adjustments.

On appeal, the Claimant argued that the findings of the Employment Tribunal had been perverse – but the Employment Appeal Tribunal did not agree. It held that there was evidence to support the finding that there was no substantial disadvantage and no other error of law.

Lessons for employee claimants – and comfort for employers

Reading the decision of the Employment Tribunal and Employment Appeal Tribunal, it’s clear that the Claimant in this case had not provided the necessary medical evidence to support her claim and had also not proved herself to be a wholly reliable witness (although for the most part, there was no suggestion that she was deliberately trying to mislead). The case does offer some comfort to employers – taking action to address complaints and maintaining an impeccable audit trail of steps that have been taken to assess and resolve claims of disadvantage will certainly be an advantage in any subsequent tribunal proceedings.

For assistance with any aspect of a discrimination claim, or if you have questions about supporting employees with disabilities in the workplace, get in touch with our experienced London employment solicitors. You can speak to us in confidence on 0203 959 9123 and we will be pleased to assist.

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