Here is an interesting little question about how far an employer needs to formalise steps taken to accommodate an employee’s disability.
Mr Brangwyn went to work for South Warwickshire NHS Foundation Trust in 2008 as Occupational Therapy Technician. This was not directly a medical role but did involve some time escorting patients around the building from ward to treatment and back. In May 2011 he was diagnosed with a serious and worsening phobia of “blood, injections and needles”, a more than slightly ill-starred development for someone working in a hospital. The effect of this was that just being near the bed bay areas on the wards made him feel ill and stressed. The furthest he could venture in was to the waiting area near the ward door. Knowing of this diagnosis, the Trust told Brangwyn orally that it would be okay for him to collect and deliver patients from and to that area, and that he would not have to get the patients out of bed onto chairs or trolleys or otherwise go into the bed bay area itself. And so it was, that oral commitment being fully respected by the Trust from then onwards.
However, though that commitment was honoured, the Trust did not get around to amending Brangwyn’s job description to confirm in writing that he would not have to go into the “blood and guts” parts of the ward. Instead he received a series of further job descriptions, all of them wrong (as he saw it) in different respects. He said that this failure by the Trust left him at a substantial disadvantage because of his apprehension that he might still have to go into those areas at some future point. The production of a written job description refuting this would therefore surely be a reasonable adjustment on the part of the Trust – it would not be hard to do, or cost anything, or inconvenience anyone else, so how could it be otherwise?
The Trust was roundly panned all the way from Employment Tribunal to Court of Appeal over this failure to correct or qualify the standard Occupational Therapy Technician job description for just those reasons. It was “deplorable” that the matter had not been attended to.
But was it a failure to make reasonable adjustments under the Equality Act? In other words, could Brangwyn show that he was subject to some provision, criteria or practice (PCP) by the Trust which disadvantaged him by reason of his disability and could have been mitigated by some reasonable adjustment by the Trust? If there was no such PCP, the duty to make reasonable adjustments never arose in the first place.
The Court of Appeal said that because the Trust has promptly agreed that Brangwyn need not go on to the bed bay areas of the wards and had stuck by that commitment ever since, there was no such PCP. Whatever the position in relation to the serially inaccurate job descriptions, the fact remained that the Trust had not imposed any such obligation on Brangwyn since he had first raised the matter. Therefore there was no PCP putting him at any disadvantage, let alone substantial disadvantage. As a result, whether or not it was reasonable to expect the Trust to have got its act together sufficiently to issue a clarificatory job description or some sort of side letter, that was not an obligation imposed by the Equality Act.
The Court of Appeal then considered whether Brangwyn’s inchoate concern that he may at some unspecified future point have to go on to the bed bays itself amounted to a PCP. The burden of proof on him was not high – the Court referred to its own decision in Carreras – v – UFP which said that even just an employer’s preference or expectation or request falling short of an order could be enough to constitute a PCP. However, their Lordships did not buy the argument that a mere self-induced perception or fear by the employee, not based at all on any actual conduct of the employer, would be sufficient.
As a result, although it would have taken literally 5 minutes to pen something suitable for Brangwyn, and though the judicial process had taken over 5 years from Brangwyn’s dismissal in February 2013, this seemingly completely unnecessary piece of litigation can act as some reassurance to employers that if you have done in practice all that is needed to accommodate an employee’s disability, you may not then be legally required also to confirm in writing that you have done so. Equally, however, the far more obvious practical answer would be just to take the 5 minutes in the first place.