Disability News - Duty to make Reasonable Adjustments

Paul v National Probation Service (2004) IRLR 190

In this case the Applicant (Mr Paul) was a disabled person within the definition of section 1 of the Disability Discrimination Act 1995 suffering from chronic depression for which he was under the care of two consultant psychiatrists.

The facts of this case were that in November 2001 the Applicant applied to the Respondents for the position of part time Community Service Supervisor to work one day per week. He also applied for a job as a part time handyman. During the interview he informed the Respondents that he suffered from a chronic illness. The Respondents then offered him the job subject to a satisfactory Occupational Health report. Following receipt of the Occupational Health Advisor's report the Respondents wrote to the Applicant informing him that they were withdrawing their offer of employment due to an unsatisfactory Occupational Health report and offered the Applicant the handyman job instead. In the report the Occupational Health Adviser was aware that the post of Community Service Supervisor was stressful and she recommended that the Applicant be given the job of part-time handyman and that his suitability for the role of Community Service Supervisor be reviewed in three months time.

The Applicant claimed disability discrimination in relation to the withdrawal of the Community Service Supervisor Job offer.

The case was referred to the EAT after an employment tribunal found in favour of the Respondent. The EAT found that the tribunal had made a number of errors in reaching its decision and remitted the case to be heard by a different tribunal.

In a judgement given by Cox J, the EAT held that the employment tribunal had wrongly identified as the discriminatory act, the employer's requirement that all appointments were subject to occupational health clearance. This was an incorrect approach because an occupational health assessment will not lead to a refusal of employment unless the disability in question affects the individual's ability to do the job and no reasonable adjustments can be made. On the facts, substantial disadvantage arose for the Applicant not from the fact of the health check but from the assessment by the Occupational Health doctor about the challenging and stressful nature of the work and the Applicant's unfitness for the post sought. This assessment placed the Applicant at a substantial disadvantage in comparison to persons who were not disabled therefore;

• The tribunal should have considered for the purposes of section 6 of the Disability Discrimination Act 1995 whether the Respondents had taken all reasonable steps to prevent the Applicant being disadvantaged in this way.
• The EAT stated that the Respondents should have scrutinised the occupational health assessment more carefully. If it had done so it would have noted a number of inconsistencies.
• The Respondents should also have considered what reasonable adjustments could be made to the job to accommodate the Applicant.
• They also pointed to the fact that the offer of the part time handyman post had not amounted to a reasonable adjustment. This was a separate job application and did not have a bearing on the Respondent's duty in relation to the post of Community Service Supervisor.

The EAT's decision in this case provides useful guidance for those employers who routinely use occupational health assessments as part of their recruitment process.