Aston Martin payout after failing to make reasonable adjustments
An Aston Martin worker with a spinal condition has been awarded £36,000 at an Employment Tribunal. The Tribunal found that Aston Martin had failed in their duty to make reasonable adjustments.
The decision highlighted prime examples of adjustments that the Tribunal viewed as reasonable and expected Aston Martin to consider. It also found that a defence of it being “too expensive” to make adjustments may fail without even a basic financial impact assessment (especially in a business with large resources available).
Aston Martin accepted that it knew the worker, Mr Sean Deanie, had a serious back condition. Mr Deannie had two long periods of absence from work due to his back pain. On one of the occasions he had been advised by a manager to leave work and go to A&E because of the pain he was evidently experiencing.
The need to make reasonable adjustments
The Equality Act 2010 says employers must consider making adjustments to accommodate a disability. However, the Act absolves an employer of the duty to make adjustments if it “does not know and could not reasonably be expected to know” that someone has a disability.
Aston Martin clearly did know of his problems and had also provided Mr Deanie with a chair to help rest his back. He had also brought in a stool from home to help. His back problem was discussed at work and Aston Martin were aware he was taking painkillers which made him drowsy.
Aston Martin contended that Mr Deanie had been asked what adjustments he would like to be made. He was advised that if he needed to take breaks then he could. However, Mr Deanie’s performance targets were not changed and he was still expected to fulfil his production role.
Mr Deanie was advised that he could ask for lighter duties or shorter hours, which would be accommodated. This was, however, contradicted by a subsequent request for shorter hours being flatly refused.
The Tribunal took the view that the chair given to Mr Deanie was not designed to be supportive or for people with back pain generally. It was simply a standard office type chair.
As a result, Mr Deanie stopped using the office chair and brought in his own chair from home. The chair was one of his sister’s hairdressing stools. It was not designed to be supportive and was also unstable, because it was on wheels.
“Crying out for occupational health”
The Tribunal stated “The fact that the claimant had to bring in his sister’s hairdressing stool to rest on due to his back pain does not appear to have generated any particular concern among his managers at the respondent. In particular it did not prompt them to refer the claimant to occupational health.”
They also said that “A striking feature of the evidence in this case is that despite what we think were the very obvious problems which the claimant was experiencing with his back whilst at work the respondent did not refer the claimant to occupational health at any stage.”
Aston Martin even had on-site occupational health support available nearby, which would have been easily accessible. The Tribunal also noted that Mr Deanie was not referred for an ergonomic assessment, even though the facility was available too.
Aston Martin claimed that a policy existed to only refer workers to occupational health in cases where skin conditions or lung problems may have been caused by their work. The Tribunal asked to see the policy, but were advised there was no such written procedure. Neither was there a formal procedure prohibiting managers from referring to occupational health.
The Tribunal then went as far as recording that Aston Martin “steadfastly stuck to its practice of not referring workers to occupational health even in a case like this – which we should make clear is a case which we consider was crying out for occupational health advice and assistance”.
Occupational health referral suggested by Tribunal
It is a well-established precedent (from Tarbuck v Sainsbury’s Supermarkets Ltd  IRLR 664, EAT) that consulting with an employee or arranging for an occupational health or other assessment of needs is not in itself a reasonable adjustment, because the step does not remove any disadvantage that may be apparent.
However, as the Tribunal stated “undertaking formal consultation and referrals to occupational health are prudent practice in any case where a worker has a disability which is affecting them at work”.
The Tribunal continued that “A failure to formally consult and take advantage of occupational health and other facilities which are designed to assist with making reasonable adjustments makes it more likely that a respondent might fail in its duty to make reasonable adjustments.”
The recommended reasonable adjustments
The Tribunal found that Aston Martin could have made some adjustments to the role, which they would have viewed to be reasonable. They were suggested by Mr Deanie as part of his evidence, although the Tribunal found there was little reason they were not acted upon.
The recommended adjustments were:
- Adjusted targets, with lower completion quotas
- Provision of specialist supports, such as an appropriate chair
- Providing a second person to assist with elements of the role
- Implementing a period of light duties
- Removing the need for overtime to be worked
The Tribunal’s decision – a failure to make adjustments
Aston Martin asserted that it would have been too expensive for them to make adjustments, however, there had been no attempt to analyse the cost of the proposed adjustments. The Tribunal took the view that within the context of the business’ financial position and the resources available the adjustments were not excessively disruptive or expensive, especially taking into account their likely efficacy.
The Tribunal stated that “at its core the case involved a straightforward failure by the respondent to comply with its duty to make reasonable adjustments”.
The unanimous decision was that Aston Martin pay Mr Deanie compensation of £24,500, interest, loss of earnings and interest on the loss of earnings, totalling £36,105.54. It is likely that significant time and money were also spent by the business in defending the claim, probably dwarfing the compensation costs.
Key points for employers
The conclusions in the judgement are very clear:
- businesses must consider making adjustments if a disability affects someone’s work
- any reasons not to make adjustments must be clearly explained and documented
- a financial impact assessment is suggested if cost if to be relied upon as a reason not to make an adjustment
- engaging occupational health is recommended
- it is more likely that employers might fail in a duty to make reasonable adjustment if occupational health advice is not sought