Foster v Cardiff University UKEAT/0422/ 12/ LA (Reasonable adjustments)

Subjects: Disability Discrimination – Reasonable Adjustments – Comparator

C was an academic at R's University. C suffered from Chronic Fatigue Syndrome (CFS). C claimed that R had failed to make reasonable adjustments to its teaching requirements in 2010-2011. The ET rejected her claim and she appealed.

Facts

C was a senior lecturer in Human Resource Management (HRM). She was disabled by CFS which manifested itself by persistent exhaustion. Most of C's complaints concerned her academic workload. C found face-to-face teaching particularly tiring. After C was employed in 2000 she had a period of long sick leave. From 2004 onwards C was able to work for approximately 7 years with a flexible and informal approach being taken to the issue of workplace adjustments. In 2009 a new head of HRM was appointed. He did not get along with C. C's teaching allocation increased (although it was still low). Discussions took place over the next few months about C's workload. C eventually went off sick in December 2010, never to return to work. C claimed that she was discriminated against. C included a claim of indirect disability discrimination.

Held

C's main appeals concerned the definition of disability and the identity of the comparator. The EAT upheld the distinctions that the ET made between the anxiety and stress (which exacerbated C's disability) and the disability itself. The EAT accepted R's submissions that the EA 2010 does not required an ET to investigate the causes of a disability, only its effects. This led to the comparison exercise.

Comment

This case is one of a number of recent cases (e.g. Aderemi (2013/1/p.1) in which the EAT has considered the nature of disability under the EA 2010. In this case the EAT continues the line of authorities drawing a distinction between the effect of a disability and the causes of the disability.

C also challenged the comparison exercise. In this case the EAT continues to adopt the incorrect comparison exercise from the case of RBS v Ashton (2012/Q2/p.3 ad Art/NLJ/Mar2011). Counsel for C argued that the there was no need to embark upon a comparison exercise because the EA 2010 should be interpreted consistently with Directive 2000/78/EC. Surprisingly in this case (and in the others) there continues to be no reference to the two leading cases in this area Smith v Churchills Stairlifts [2005] EWCA Civ 1220 and Archibald v Fife [2004] UKHL 32. Both these cases (by which the EAT is bound) require the comparison to be made, not with non-disabled persons generally, but with non-disabled persons who are not disadvantaged by the PCP in question.

Please note the case of Griffiths v Secretary of State for Work and Pensions which is due to be heard by the Court of Appeal in February 2015.

The full transcript is here: http://www.bailii.org/uk/cases/UKEAT/2013/0422_12_2703.html