Chief Constable of West Midlands Police v Gardner UKEAT/0174/11/DA

Subjects: Reasonable Adjustments – Identification of Disadvantage – Calculation of Pension Losses – Ogden Tables – Effectiveness of adjustment

The ET held that R had failed to make the reasonable adjustment of allowing C to work from home. R appealed the finding that it had failed to make a reasonable adjustment and C appealed the ET’s award of compensation in respect of his pension.

Facts

C was a police officer who was injured while on operational duties. It was agreed that C was disabled but the parties could not agree on the nature of the disability. Although the parties accepted that C was disabled they did not agree on the precise nature of C’s disability, which was described simply as a “knee condition”. The actual condition was not identified nor were the functional effects of it spelt out. Occupational health provided a report to R which stated that C was fit for office based light duties but should not be exposed to confrontational or similar duties or prolonged sitting. The ET identified the answer to the question “if so, did the above PCP place the Claimant at a substantial disadvantage in comparison with persons who are not disabled and, if so, how?” as being: “The nature of the substantial disadvantage suffered by the Claimant was his inability to consistently work at a West Midlands site even in a temporary role. This placed him at the disadvantage of being at risk of having his contractual pay reduced and, ultimately, removed.”

Held

The EAT allowed R’s appeal in respect of the reasonable adjustments claim. The ET had failed to set out why the adjustments would have been effective. The EAT emphasized the need for the ET to determine how C was affected by his disability in order to decide what adjustments were required. Since the ET had not made it clear how C’s knee problem affected his abilities its decision on what adjustments were required could not stand. It was, for instance, impossible to say why the other adjustments, which had been offered by R, would not have prevented the disadvantage. Identifying the disability simply as a “knee condition” was insufficient.

Although the appeal on remedy was rendered academic by the decision on liability the EAT made some obiter comments about the calculation of damages in respect of pension which are useful. C was a member of a final salary pension scheme. He was 48 when he left the force but would otherwise have left at the age of 60. The ET adopted the substantial loss approach from the Compensation for Loss of Pension Rights Employment Tribunals booklet published in 2003. The 2003 booklet does not use the method of calculation used in the civil courts, which uses the Ogden tables (see Auty v National Coal Board [1985] 1 WLR 784). R argued that the ET should not have substituted the tables in the booklet with the Ogden Tables. The EAT endorsed the ET’s approach, saying that the tables in the 2003 booklet were written during times of “economic plenty”.

Comment

There is an interesting discussion of the wording of s.4A DDA 1995 (now s.20 EA 2010) that describes what sort of adjustment the legislation requires. The legislation requires the employer to take such steps as it is “reasonable […] for him to have to take in order to prevent […] that effect.”

R argued that since the words “to have to” appeared in front of the word “take” they emphasised the compulsive nature of the duty. It was to be read as “to be obliged to take”. C argued that the words merely emphasised the necessary nature of the adjustment which it was reasonable to take. Although the EAT did not consider that it had to resolve this argument it agreed with C for two reasons: firstly, the section imposes a duty on the employer. It would be otiose to require that the employer had a duty and then separately oblige him to discharge it. The word “duty” is simple enough; secondly, in context “to have to” was directed towards the necessity for the adjustment. To say that it must be necessary does not mean to say that an employer can argue that he had no duty to make a postulated adjustment by pointing to the fact that there might be another adjustment which would have the same effect, thus demonstrating that the postulated one was not “necessary”, and thus it was not obligatory for the employer to make it. The emphasis of the section is upon achieving an adjustment which prevents either the PCP, or the feature of the premises, or the mixture of the two which is putting him at a substantial disadvantage in comparison with person who are not disabled. But nonetheless the phrase does emphasise that the focus of a Tribunal is not upon steps which might be desirable in some general sense, but upon those which are necessary as steps towards a particular end.

The EAT's obiter comments on the calculation of pension loss are worthy of note. Although the EAT stressed that it was not laying down guidelines its acceptance that the figures from the 2003 booklet were out of date would provide powerful ammunition for anyone seeking to argue that the tables in the 2003 booklet should not be used. Interestingly, the EAT also commented that the words “to have to take” in s.4A DDA 1995 (which are repeated in s.20 EA 2010) are directed towards the “necessity for the adjustment” and that it was not open to an employer to defend a reasonable adjustments claim by pointing to other reasonable adjustments which it could equally have made.

The full transcript can be found here: http://www.bailii.org/uk/cases/UKEAT/2011/0174_11_1910.html