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ENVOIRNMENT AGENCY V ROWAN [2008] IRLR20 EAT. A Comment
DUTY TO MAKE REASONABLE ADJUSTMENT
Facts of the case
The respondent, Mrs Rowan was employed by the claimant as a part time typist at its office
in Cardiff. She was the only typist, the company had in that office because of the nature of
work in that office. She had suffered a workplace accident in 1993 when she slipped and fell,
injuring her back resulting in serious back injury. Her medical condition deteriorated despite
surgery in 1997 and subsequently she went for a long term sick leave. On 8
th
December 2002,
she moved out of her house from Marshfield in Cardiff to Herefordshire which resulted in
travel of extra 45 miles as compared to the house in Marshfield. On 30
th
September 2002 she
went for a long term sickness absence and did not return to work. The respondent, around
middle of November 2003, made the appellant clear that she wishes to be rehabilitated from
home and not from the agency work place for which she wanted to start work from her home.
Between April and June 2005, various conversations took place between occupational health
physician, Dr Waddy and the respondents line manager Kim Evans.
The conversations were recorded by the line manager, including telephonic conversation,
where the doctor saying that Mrs Rowan does not really want to return to work. The doctor
recommended various adjustments that might help her return to work. In November 2005, the
appellant commenced its capability procedure, on number of occasions the defendant had
sought ill health treatment on the grounds of inability to work at all where the recording was
disclosed.


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On 14
th
of December the respondent lodged a grievance in relation to the recordings and the
hearing took place on 6
th
of January. A week after that she was informed with the decision
and was asked to contact the human resource department to confirm agreement for an
independent medical review because they had no more faith in Dr Waddy. On 27
th
of January
Mrs Rowan resigned by a letter saying that she was not happy with the decision of the human
resource department that her grievance had not been upheld and she was distressed by the
recordings. She informed them that she will be seeking remedy for constructive dismissal
through the employment tribunal.
Nature of claim and finding of the Employment Tribunal
The claim was made under ss.3A, 4A(1), 18B(1) and (2) of the Disability Discrimination Act
1995 as well as DDA (Amendment) Regulations 2003 regarding disability discrimination,
failure to make reasonable adjustment and under ss.95 and 98 of the Employment Rights Act
1996 dealing with unfair dismissal.
The tribunal went on to find, on the disability related discrimination, that she was treated less
favourably than another to whom that reason i.e. the reason for treatment did not apply. There
was disability related discrimination in that the claimant was treated less favourably than an
able bodied employee because she was required to work in office with which she had
difficulties whereas an able bodied would not. The employment tribunal noted that the
respondent had failed to consult the Disability Rights Commission Code of Practice or take
special advice. The respondent accepted that the claimant was a disable for the purpose of
Disability Discrimination Act and that the respondent had duty to make reasonable
adjustment.

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As the respondent admitted the duty to make reasonable adjustment, the employment tribunal
remarked that job sharing had never been considered and that the respondent could easily
have accommodated by giving claimant time off. The tribunal found that no real
consideration had been given as to whether home working was appropriate, as in relation to
cost of the reasonable adjustment the respondent, in the tribunals opinion, had substantial
financial resources. The tribunal was not convinced that home working could not have been
given a trial run even at least for one or two months if not on permanent basis. The
Employment Tribunal considered that the complaint of disability discrimination had been
made out and the reason as to why the tribunal considered it was the failure of the respondent
to afford the claimant a trial period of home working, the request of which was made in June
and July 2003 and again November 2004 which was refused on each occasions.
The Tribunal then went on to consider the issue of constructive dismissal and reminded itself
the implied terms of trust and confidence in a contract of employment which was a
fundamental term of the contract and a breach of which would entitle the employee to resign
to it and claim repudiatory breach or constructive unfair dismissal. The tribunal considered
that the recording of the conversation between Ms Evans and Dr Waddy was sufficient reason
to a breach of the term.
The Nature of Claim and Finding of Employment Appellate Tribunal.
The appellant, Environment Agency, submitted that employment tribunal failed to adopt the
schematic approach required by the statute and had failed to give sufficient reasons and failed
to make or record sufficient finding of fact. The appellant further submitted that the
employment tribunal had failed to identify the provision criteria or practice (PCP) or physical
feature. It was further submitted that the employment tribunal had made no findings as to the
nature and extent of the claimants substantial disadvantage caused by being required to work
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in an office and did not give adequate consideration as to how the proper adjustment would
have prevented the claimant being placed at substantial disadvantage. The tribunal had also
failed to identify the steps that might have been taken by the respondent to prevent office
working placing her at substantial disadvantage. It was submitted that the employment
tribunal made no finding as to whether, how, or why home working would have prevented
the adverse effects she claimed to have suffered and there was no analysis of the medical
evidence.
It was further contented that the employment tribunal had, most crucially, not made any
finding as to the nature of the claimants disability and why this disability placed her at a
substantial disadvantage. Secondly as to what that substantial disadvantage was and the role
or the breakdown of the tasks required of her. It was submitted that there had to be some
evidence that taking steps of a trial period of home working would have alleviated the
substantial disadvantage. The appellant submitted that there was medical evidence, which
was ignored, that the respondent was able to work in the office environment and that the
home working arrangements proposed by the defendant could constitute reasonable
adjustment. The tribunal also completely ignored the defendants change of position as to
why she wanted to work at one time once a week at home which was subsequently changed
to complete work at home. It was also contended that the tribunal ignored the adjustments
made by the claimant like providing the special wheel chair, flexible part time working and
breaks during the working times.
The respondent sought to uphold the employments decision on the ground that it was made
on sufficient findings supported by the medical evidence and that the option of home working
had reasonable chance of success. It was submitted that the respondent had difficulties in
working in office environment rather than caused by the long journey. The respondent also
conceded that initially she asked for one day work at home, then two and her final position
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was that she could only work at home and she accepted that carrying all of the work at home
was not possible and she might be expecting some sort of job sharing whereby work that
could only be carried out in the office would be carried out by a colleague and she could
absorb more of the work that could be done at home.
The EAT went on to held that the employment tribunal failed to identify clearly the nature
and extent of the substantial disadvantage suffered by the claimant and in the absence of such
findings the employment tribunal was unable to determine properly what adjustments were
reasonable to prevent the requirement to work in the appellants office. The employment
tribunal had also not explained how the proposed adjustment would alleviate the claimants
substantial disadvantage. The EAT also held that employment tribunal failed to explain how
home working would have overcome the adverse effects said to have been suffered by the
respondent. There was also no analysis of the respondents duties and how long she was
required to sit to sit and also finding that she was unable to get up and walk around when she
may have needed. Because there were no reasons for the findings, the Employment Appellate
Tribunal allowed the appeal by the appellant to the extent of the disability discrimination. In
the matter of constructive dismissal, the recording of conversations were capable of giving
rise to a repudiatory breach of contract and the finding by the employment tribunal was held
to be on merits hence dismissed.





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CONCLUSION
The duty to make reasonable adjustment has long been the subject matter of the discussions
and the cases. The duty to make reasonably adjustment is triggered where an employee
becomes so disable that he or she can no longer meet the requirement of the job description
1
.
That duty to make reasonable adjustment would not be breached simply because of the reason
that an employer failed to consider whether or not an adjustment was required
2
. If that
Statutory requirement of making adjustment has not been complied with and the matter is in
tribunal for consideration, the tribunal need to make a sequential step approach mentioned in
the case Morse v Wiltshire County Council
3
as: first the tribunal must decide whether the
provision of s6(1) and 6(2) impose duty on the employer in the circumstances of that
particular case; if that duty is imposed on the employer, the tribunal must next decide whether
the employer has taken such steps as it is reasonable, in all the circumstances of the case, for
him to have to take in order to prevent the s6(1)(a) arrangements or s6(1)(b) of feature of
having effect of placing the disabled person concerned at a substantial disadvantage in
comparison with the person who is not disabled. This in turn, involves the tribunal inquiring
whether the employer could reasonably have taken any steps set out in Para. (a) to (i) of s6(3)
and at the same time the tribunal must have regard to the factors set out in the s6(4) Para (a)
to (e). In consider a case revolving around allegations of failure to make reasonable
adjustments, it is not necessary to follow the guidance set out in the Morse and Wiltshire
county council case
4
.



1
Archibald v Fifa County Council [2004]IRLR 651.
2
Tarbuck v Sainsburys Super market Ltd [2006] IRLR664.
3
[1998] IRLR 352.
4
Beart v HM Prison services [2003] IRLR 238 CA. But at the same time it was held in that case that the EAT had
not erred in applying the principle set out in Morse v Wiltshire County Council.
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Over the past few years, the EAT has become prescriptive about the sequence of the steps an
employment tribunal should follow for determining whether there is a duty of reasonable
adjustment. The significance of this case is that guidance has been provided by the judge
Serota to tribunals when considering a claim that an employer has discriminated against an
employee under section 3A(2) by failing to comply with s4A duty to make reasonable
adjustment. The advice given is that the tribunal must identify four steps:
a) The provision, criteria or practice applied by or on behalf of the employer;
b) The physical features of the premises occupied by the employer;
c) The identity of no disabled comparator if applicable;
d) The nature and extent of the substantial disadvantage suffered by the claimant.
This four step approach is actually an expansion of the Morse v Wiltshire County Council
5

case but point (d) is significantly important and new and imposes a question whether the
claimed reasonable adjustment have been effective in alleviating the substantial disadvantage
in question.
The same Judge Serota in a case Smiths Detection-Watford v Berriman
6
had held that the
simple knowledge of the employer that employee was disabled does not bound him to make
reasonable adjustments. The tribunal first have to identify the arrangements or the
amendments to physical features and then go on to properly find the less favourable
treatment. This approach was later followed in London Borough of Barnet v Ferguson
7
, and
held that there should be some indication about the nature of job, whether the physical nature
of the premises or practice adopted by the employer put a disabled person at substantial
disadvantage and should be some indication as to whom the disabled to be compared with.

5
Ibid 3.
6
[2005] All ER (D) 56.
7
[2006] All ER (D) 192.
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The approach taken by the tribunals and courts is good in the sense that the duty of
reasonable adjustment would be discharged on practical points adopted by the tribunals over
the past years and with the experiences of the cases and it is gradually becoming duty of
reasonable adjustment rather than unreasonable burden.














WORD COUNT: 2200.
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BIBLIOGRAPHY
TEXT BOOKS
Camilla Palmer, Discrimination law hand book (2nd edition OUP, London 2007)

Sandra Fredman, Discrimination law ( OUP London )

Aileen McColgan, Discrimination law Text and Material (2
nd
edition Hart publication,
London 2005)

Town Shed- Smith, Discrimination law text and materials ( 2
nd
edition Cavendish
publishing, London 2004)

Domestic Legislations

Disability Discrimination Act 1995

Disability Discrimination Act 2005

Web Sites
http:// www.equalityhumanrights.com

http:// www.emplaw.co.uk

http:// www.communities.gov.uk

http:// www.lawsociety.org.uk

http:// www.berr.gov.uk

http:// www.homepffice.gov.uk

http:// www.stonewall.org.uk

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http:// www.Bailli.org

http:// www.acas.org.uk

http:// www.cehr.org.uk

http:// www.eoc.org.uk

http:// www.justice.gov.uk


Code of Practices

Disability code of practice for trade organisation and qualified bodies issued by EHRC.

Disability; a Practical guide to law and best practice for employers. Issued by EHRC

Disability code of practice on Employment and occupation issued by EHRC.












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ARTICLES
A Cuckoo in the Nest? A 'Range of Reasonable Responses', Justification and the
Disability Discrimination Act 1995: ILJ 2003 32(164).
A shifting balance: 157 NLJ 1408.
Access all areas: 156 NLJ 1668
Harvey on Industrial Relations & Employment Law Bulletin/Bulletin 355/DIVISION L
EQUAL OPPORTUNITIES: February 2008
Discrimination Law: 148 NLJ 1312
Employers, start studying: 154 NLJ 1333
Employment affairs: LRI 102 (3) (2)
FOCUS: SOLICITORS WITH DISABILITIES - Breaking the barriers - there are now
more disabled people working as solicitors than ever before, largely thanks to new
technology which means that physical barriers are becoming increasingly
irrelevant:(1998) LS Gaz, 25 Nov, 95 (24)
Industrial Relations Law Reports/2003/April 2003/Highlights: April 2003
Industrial Relations Law Reports/1998/July 1998/Highlights: July 1998

Legal Update: Employment law: (2003) LS Gaz, 18 Sep, 32 (2)
Proving discrimination: the new law: 155 NLJ 400
Reasonable adjustments: the calm after the storm? : 154 NLJ 1820
Reasonable adjustments: the way forward: 154 NLJ 452
Recent Cases--Commentary--Discrimination and Constructive Dismissal
:
ILJ 2001 30
(381)