Newcastle upon Tyne Hospitals NHS Foundation Trust v Bagley UKEAT/0417/11

Subjects: Reasonable Adjustments – Comparators – Indirect Discrimination

C went off sick from work and was eventually dismissed for incapacity. C claimed that R had failed to make reasonable adjustments by altering its requirement for her to accept a permanent reduction to her hours before it would allow her to apply for a permanent injury benefit (PIB). The ET upheld her claim and R appealed.

Facts

C was off sick from work. R paid a temporary injury allowance which topped up her sick pay to 85% of her full salary. R had a policy that, on a phased return to work, the allowance would only pay for the hours worked. C returned to work and took annual leave to cover the deficit. C was concerned because she could not work full time nor afford to work part-time. She enquired about PIB. The application was delayed. When C's holiday was exhausted C started a long period of sick leave that culminated in her dismissal for incapacity. Although the ET was said to have identified a number of PCPs that potentially placed C at a substantial disadvantage compared with persons who were not disabled, these were not really set out clearly by the EAT.

Held

HHJ Birtles allowed the appeal. His judgment is rather long and rather difficult. It is hard to identify the issues or the thrust of the appeal.

The judgment is interesting because of HHJ Birtles’ comments on the comparator. HHJ Birtles in the EAT considered the question of what was the correct comparator in a disability discrimination claim. He cites from RBS v Ashton the example that where a sickness absence procedure applies equally to all employees who were all equally advantaged or disadvantaged by it, no duty to make reasonable adjustments arises. His Honour also comments at paragraph 87 that the sort of statistical analysis that one sees in indirect discrimination claims has no place in a reasonable adjustments claim.

Comment

Practitioners should be wary about relying on this case. In Comparing Comparators Art/NLJ/Mar2011 I considered the question of whether the comparison exercise in RBS v Ashton [2011] ICR 632 was correct. The example cited by HHJ Birtles, of the disabled employee's entitlement to sick pay is flawed. In fact the comparators are not other able bodied people who are disadvantaged but others who are not disadvantaged. This is made quite clear by the Court of Appeal in Smith v Churchills Stairlifts PLC [2005] EWCA Civ 1220 and also by the Supreme Court in Archibald v Fife [2004] IRLR 651.

When RBS v Ashton was handed down I indicated that practitioners should be keep an eye on whether the approach in that case was adopted. This is the first EAT case that I have read that follows Ashton and it will be interesting to see whether the question of the comparator in reasonable adjustments cases starts to come under increasing scrutiny or whether this new approach will be identified as a departure. Although the comparator in Smith v Churchill may need revisiting this alternative is equally suspect. It is a strange comparison exercise that prohibits a statistical analysis where a policy is applied across the board to disabled and non-disabled alike. How is the disadvantage (if any) identified in these circumstances?