1 September 2021 | Comment | Article by Rhiannon Dale
The Hugh James Employment Team has successfully defended a claim in the Employment Appeal Tribunal (EAT) for a large public authority in South Wales, in a case which highlights the importance of identifying the correct PCP in a reasonable adjustments claim:
The team, comprising Louise Price, Rhiannon Dale, and Emily Thomas, acted for the City and County of Swansea and had already succeeded in defending the claimant’s claims for unfair dismissal and various disability discrimination claims, which were dismissed by the Employment Tribunal at first instance. The team instructed Julian Allsop of Guildhall Chambers to represent Swansea Council at the final hearing.
The EAT judgment in the case of A Martin v City and County of Swansea was handed down on 29 July 2021. The case turned on the correct analysis of the particular “provision, criterion or practice” (PCP) that was said to have placed the claimant at a substantial disadvantage in comparison with non-disabled persons.
In this case, the claimant had contended that the PCP resulted from the application of the Council’s Management of Absence Policy to her.
The EAT found that the Employment Tribunal had erred in law in concluding that the PCP asserted by the claimant was only the terms of the policy (rather than its application to her). It also held that the Employment Tribunal had erred in its conclusion that because the policy included discretions that could allow the claimant to be moved into an alternative role (amongst other things) the substantial disadvantage could be avoided. The EAT concluded that the application of the policy put the claimant at a disadvantage because she was at a greater risk of absence than people who are not disabled and so, because the discretion to find an alternative role might not be exercised in her favour, was at a greater risk of dismissal.
However, the real question in this case, was whether the Council had taken such steps as were reasonable to avoid the disadvantage and both the Employment Tribunal and the EAT found that it had. The EAT found that the Employment Tribunal had correctly held that the Council had made such adjustments as were reasonable and therefore the Claimant’s appeal was dismissed by the EAT.
What we also have from this case is some helpful guidance in relation to identifying PCPs. The EAT confirmed that a “practical and realistic approach should be adopted at the case management stage to identify a workable PCP”. The EAT also commented that representatives should consider how the PCP is to be pleaded with “great care”.
The Employment Team were delighted with the outcome of this case for Swansea Council given the significant efforts that had been made by the Council to accommodate and assist the claimant during her employment and in helping her to find an alternative role within the authority. These efforts were recognised at first instance by the Employment Tribunal in its analysis of the adjustments which had been made and later endorsed by the EAT.