DDA: reasonable adjustments (wording of ET applications). Case Ref: 9.2/ Oct 05
Summary of Case
A member suffered from anxiety and depression and was off work for a four month period. She returned to work part-time away from "front line duties". An OHS report indicated that she was likely to recover in 6-12 months.
Following a re-structuring of work, which involved relocation of jobs, she was not offered an alternative post which did not require client contact. Because of childcare commitments she was unable to transfer to another office. She objected to this over a period of time. At no time were concerns raised in respect of her progress by the employer.
A further referral to OHS was eventually made. The report concluded that the new role she had been allocated to was unsuitable and unhealthy since it involved high levels of client contact.
Subsequently the member received a performance assessment which was substantially lower than previous awards. She lodged a grievance.
Her main concerns were the adverse effect on her annual pay award and that, as a consequence of the lower performance assessment marking, she may be more likely to be selected for redundancy. She also filed an ET application. Thompsons were asked to advise on the merits of her claim.
Key Advice Provided by Thompsons
The solicitor believed that there were reasonable prospects of success in pursuing a claim for disability discrimination.
Part of the advice provided by the solicitor was a draft amendment to the ET claim form which clarified the issues upon which the member's claim was based following consideration of the relevant matters at an ET case management discussion. The solicitor advised that the following text should be added at the end of the claim:
"1.1 That the Respondent failed or refused to obtain and consider a further OHS report, prior to the Claimant taking up her new role. The Claimant alleges that this was a reasonable adjustment to her work arrangements that should have been taken by the Respondent and the failure of the employer to do so is a beach of Section 3 A(2) DDA 1995.
1.2 The Respondent's beach detailed in 1.1 has caused the Claimant a detriment, which is the deterioration of her mental health.
1.1 That the Respondent failed or refused to provide back-room work to the Claimant within the office between August 2003 and October 2003. The Claimant alleges that this was a reasonable adjustment to her work arrangements that should have been taken by the Respondent and the failure of the employer to do so is a breach of Section 3 A(2) DDA 1995.
1.2 The Respondent's breach detailed in 2.1 has caused the Claimant a detriment, which is the deterioration of her mental health.
1.1 The Claimant alleges that the box score given to her in May 2004 amounts to:
1.1.1 A detriment and less favourable treatment as a result of her disability, in that the Respondent has treated the Claimant less favourably than he treats or would treat others to whom that reason does not or would not apply (Section 3 A(1) DA 1995); and
1.1.2 a failure to make a reasonable adjustment (Section 3 A(2) DDA 1995). The claimant is substantially disadvantaged in comparison to her non-disabled peers who do not suffer anxiety and depression directly related to their contact with clients. The reasonable adjustment would be the scoring of her performance on those factors not related to the Claimant's front-line client duties.
1.2 The Respondent's breach detailed in 3.1 has caused the Claimant a detriment, which is the deterioration of her mental health.
4.1 The Claimant alleges that the breaches of the DDA 1995 detailed above amount to a continuing act of less favourable treatment and failure to make reasonable adjustments.
The Claimant claims:
1. A declaration that she has been subject to discrimination on the grounds of her disability.
2. Compensation, including an award for injury to feelings.
Legal Department Comment
Clearly not all DDA claims are identical and different issues may need to be emphasised in respective cases. However, the draft amendment to the claim highlighted above may be a useful starting point for representatives who need to draft or amend ET claims to clarify what the claimant is asking the Tribunal to address.