The law states that employers have to make reasonable adjustments for disabled employees in certain circumstances. In Yorke v GlaxoSmithKline (GSK) Services Unlimited, the Employment Appeal Tribunal (EAT) held that redeployment to another specific role is not necessarily a reasonable adjustment if that role is found not to be suitable by the tribunal.
Basic facts
Ms Yorke worked for GSK as a “mover” which was a very physical job. In March 2016, she began to suffer from symptoms of rheumatoid arthritis which meant that she was off work for long periods of time.
Occupational health advised in June 2017 that the employer should consider redeploying her into a more sedentary role. At a meeting in October 2017 to discuss redeployment, Ms Yorke indicated she could not return to work even if a suitable alternative job could be found for her. However, she also complained that other people had been treated more favourably than her, for instance by being slotted into the role of First Line Leader (FLL) which was a more managerial job. Her manager said she had misunderstood the situation and no one had just been slotted into the FLL role. She subsequently asked to be considered for ill health retirement but was advised that she did not fit the criteria.
After being dismissed in July 2018 on the basis of medical incapacity, Ms Yorke brought claims of disability discrimination on the basis that GSK had failed to make the reasonable adjustment of slotting her into the role of FLL and that
she had suffered less favourable treatment because of something arising in consequence of her disability.
Relevant law
Section 20 of the Equality Act states that the duty to make adjustments arises where a provision, criterion or practice (PCP) of the employer puts a disabled person at a substantial disadvantage compared with people who are not disabled.
Section 15 of the Act states that it is discriminatory for an employer to treat a disabled worker unfavourably because of something arising in consequence of that worker’s disability, and they cannot show that the treatment was a proportionate means of achieving a legitimate aim.
Tribunal decision
When determining her claim that GSK had failed to make reasonable adjustments, the tribunal held that the only workable PCP put forward by Ms Yorke was the requirement by GSK for employees to achieve a certain level of attendance and that this put her at a substantial disadvantage, namely the risk of being dismissed
However, it did not consider that it was a reasonable adjustment for GSK to have to alter the policy by removing the sanctions or adjusting the sickness absence triggers. Nor was it reasonable to expect GSK to slot Ms Yorke into the role of FLL as she had not argued that a transfer to the role was a reasonable adjustment which would remove the disadvantage caused by the PCP. In any event, the tribunal found on the facts that GSK had not considered her for the role of FLL because of her attendance record, the fact that she did not have the requisite managerial experience and because it involved physical work.
The tribunal found that although she had been subject to unfavourable treatment by not being redeployed to a less physical role her dismissal was justified. Ms Yorke appealed on the ground that GSK had failed to consider her for the FLL role because of her attendance record and that it was wrong to find the employer was justified in dismissing her because she had not applied for the FLL role.
EAT decision
Dismissing the appeal, the EAT held that it would not have been a reasonable adjustment to slot Ms Yorke into the role of FLL as she had not argued at tribunal that she should have been considered for it and the tribunal found as a fact, that it was not suitable for her on other grounds in addition to attendance.
Similarly, her dismissal was justified since the possibility of being moved to the post of FLL was hypothetical because she was not in reality suitable for it.
Comment
This case is particular to its facts. It remains the case that where an employee is no longer able to perform the essential functions of their job because of a disability and is at risk of being dismissed, the employer is required to make reasonable adjustments which can include moving a disabled worker to an alternative role.