Duty to make reasonable adjustments

Bristol County Court recently provided a timely reminder of the importance of making reasonable adjustments when put on notice of a person’s disability, and in the case in question, a disability related to mental health.

Case circumstances

Natasha Abrahart (“Natasha”) was an undergraduate student reading Physics at the University of Bristol (the “University”). She started her course in the autumn of 2016.

During her second year, as part of her course, she was required to give interviews after conducting laboratory experiments and to participate actively in conferences by way of presenting with fellow students.

Natasha suffered from a social anxiety disorder which meant that she struggled to actively participate in the interviews and the conferences. Her condition was flagged up by Natasha’s tutor and the other professionals at the University in October 2017.

Having been scored poorly because of her failure to participate, and despite being put on notice of the issues that Natasha faced, Natasha’s tutors did not make any further adjustments for her, such as removing the need for oral assessment, providing written questions in advance, assessing Natasha in the absence of her peers, or using a smaller venue.

The University said that they were waiting to see if they could arrange for the student counselling service and / or Natasha’s GP to diagnose a particular issue which would then enable them to then apply for a disabilities support summary, and to make the necessary adjustments to her course for her.

In the meantime, the interviews and presentations that Natasha was expected to take part in, were still scheduled for her to attend in the following weeks and months.

As the time passed, it became clear that these interviews and presentations were severely impacting upon Natasha’s ill health, resulting in her making attempts to end her life and suicidal thoughts. The University were put on notice of Natasha’s suicidal intentions.

On the 30 April 2018 Natasha took her own life.

Natasha’s father brought a claim against the University on behalf of Natasha’s estate.

Case outcome

The central part of her father’s claim was that Natasha had a disability within the meaning of section 6 of the Equality Act 2010 (her depression and clinically significant social anxiety disorder), and that the University had actual or constructive notice of Natasha’s disability but that they failed to make any, or any reasonable adjustments to take into account this disability which then ultimately led to her death in April 2018.

The Court agreed with Natasha’s father that the burden should have been on the University when they knew of her disability to identify and make reasonable adjustments for her, but because they didn’t in a timely manner, the Court found the University lacking in their care for Natasha.

In the circumstances, it was decided that psychiatric injury was foreseeable, and the Court awarded compensation of around £50,000.00 for pain, suffering and loss of amenity, as well as injury to feelings.

So what does this case highlight for employers?

This case was not an employer’s liability claim.

It was a claim against the University on behalf of the estate of a student and the Court rejected the argument that the University owed the Claimant a duty of care as such in accordance with the common law.

However, the Court found against the University on the basis that it discriminated against Natasha and failed to make reasonable adjustments for her disability, especially once the University knew, or should have known, that a mental health disability of some sort was preventing Natasha from performing.

Employers do however owe their employees a duty of care in the workplace because of the employee / employer relationship in itself.

Even more so therefore in the workplace, this case is a sound reminder of the obligations that apply to employers in particular when put on notice of a disability to make reasonable adjustments, and this duty applies just as much to disabilities relating to mental health as it does to physical injuries.

So what should I do if an employee does disclose a disability to me?

Where an employer has been made aware that one of their employees has a disability, they should consider the following:

• Referring their employee to their GP where further advice and support is required;
• Referring their employee where appropriate to occupational health;
• Providing further information to that employee in terms of appropriate support services;
• Putting in place a further plan to monitor that employee’s condition (including an employee assistance programme) and, where possible, make reasonable adjustments to that employee’s job/role or provide support to that employee, dependent upon what the employee’s needs are. Any plans will be dependent upon the employee’s circumstances and, in all likelihood, will need to be flexible, taking into the account the extent of the issue and the needs of the employee;
• It goes without saying the employer should seek additional help where there are serious concerns about an employee’s health, and in an emergency, call 999.

The key point has to be that you maintain an open line of communication with the employee and, where possible discuss what adjustments can be made to suit their situation and circumstances, and do so in a timely manner.

It is important that employees feel that by disclosing any health concerns, that their disclosure is made on a confidential basis, and that no assumptions will be made, and that their concerns have been taken seriously and that the necessary support has been (will be) provided.

Should you have concerns about how to protect the health and wellbeing of your employees, or have any other health and safety queries with respect to your duties as an employer, please do not hesitate to contact the team at Prettys.