Business premises – Disability discrimination – Reasonable adjustments – Respondent employee suffering a disability – Appellant employer refusing to acquire tenancy of adjoining ground-floor office to accommodate respondent – Whether appellant failing to make reasonable adjustments – Appeal allowed
The respondent was employed by the appellant firm of solicitors as a trainee legal executive. She developed myalgic encephalomyelitis (ME) and became disabled within the meaning of the Disability Discrimination Act 1995.
The appellant occupied leasehold premises under two separate leases, both of which ran for six years from October 2003 and contained covenants against structural alterations. Non-structural alterations were permitted only with the landlord’s consent, which was not to be unreasonably withheld. A break clause in each lease enabled the appellant to terminate the lease at the end of the third year by giving six months’ notice in writing. There was no lift in the premises and the appellant occupied a unit on the first and second floors only.
The respondent was on sick leave and had been unable to attend work since 2005. She had suggested a number of measures to enable her to return to work, including: reduced hours; a four-day week; homeworking; installing a stair lift to the first floor of the premises; and a short-term tenancy of part of a ground-floor office in the adjoining property.
The appellant rejected those proposals and the respondent made a claim to the Employment Tribunal alleging disability discrimination. The tribunal found, inter alia, that the appellant had failed to make reasonable adjustments, as required by section 3A(2) of the 1995 Act, by failing to take a tenancy of part of the neighbouring ground-floor office premises to provide working space for the respondent.
The appellant appealed to the Employment Appeal Tribunal (EAT) contending that there was no evidence to support the finding that alternative premises were available for rent. Even if there were, the tribunal should have considered the reasonableness of the adjustment by applying the approach set out in section 18B of the 1995 Act. The tribunal had ignored the practicalities, including the cost of heating, lighting, cleaning, and insuring the premises, maintaining security, the cost of further rent and lease negotiations and health and safety issues.
Held: The appeal was allowed.
The Employment Tribunals finding regarding the failure to make a reasonable adjustment by the renting of adjoining premises could not stand. Although section 18B(2) of the 1995 Act did not refer to the acquisition of additional premises, section 18B(2)(e) did refer to assigning an employee to a different place of work or training; it did not set out limitations on when or why that place of work or training should have been acquired. Moreover, the section did not provide a closed list of categories, but did supply an unlimited checklist of possible adjustments. In an appropriate case, other adjustments not on the list might be required. Only in an exceptional case would an adjustment requiring the acquisition of other premises be held to be reasonable, but it could not be said that such a case could never arise.
In the instant case, there was no evidence to support the tribunal’s conclusion on that point. The only evidence was that the layout of the alternative premises was such that it could not be divided and part let. The managing agent would not have recommended a subletting of part of the premises and their view was that the landlord would not have accepted such a proposal. The unit was being marketed as a whole and there was nothing to suggest that the appellant would have been able to acquire a short lease of the premises. Even if the evidence suggested that part of the premises would have been available on a short let, the tribunal had failed to consider the financial and other costs, as required by section 18A(1)(c). The major expenditure incurred by such as transaction, such as rent, rates or insurance, had not been discussed.
The matter would be remitted to the tribunal to consider the question of remedy on the basis that the respondent had not failed there was no failure to make a reasonable adjustment by not acquiring a tenancy of the adjoining office premises.
Steven White (instructed by Walker Morris, of Leeds) appeared for the appellant; the respondent did not appear but made written submissions to the tribunal.
Eileen O’Grady, barrister
