Employment Law Case Update: Reasonable Adjustments

Making reasonable adjustments is an important part of supporting your employees, particularly if they have a disability.  Our Employment Law team here reviews the uncomfortable case of Mr J Kane v Barclays Bank UK plc 2021 in which the Employment Tribunal (ET) considered whether an employer failed to make reasonable adjustments by not providing an employee with quick access to a toilet.

Mr Kane worked for Barclays from 2012 until his resignation in November 2018. In 2016, he was diagnosed with Crohn’s disease, and consequently took some time off work. An Occupational Health report stated that:

• Mr Kane’s condition likely qualified as a disability under the Equality Act 2010 and recommended “flexibility to attend any medical review/treatment appointments”.
• Mr Kane’s condition should be taken into account when evaluating his performance and attendance.
• Recommendations for adjustments should be taken on board, such as “micro-breaks throughout the day and that toilet and washroom facilities should be near at hand.”

Subsequent OH reports prepared after further periods of sickness leave made similar recommendations.

In December 2017, Mr Kane transferred to the Bournemouth branch, and after a series of absences a further OH report was prepared and suggested flexibility around absence triggers, and that Mr Kane be allowed to work “on the middle floor which is closest to a toilet… to alleviate concerns around using the bathroom at very short notice”.

In July 2018, Mr Kane moved again to the Westbourne branch. At this branch, the toilets were located in a secure area, and Mr Kane was not always able to immediately access them when he was working with customers outside the secure area. This was a source of great anxiety to Mr Kane, as his Crohn’s disease meant he might need quick access to a toilet. The ET found that on two occasions Mr Kane had to go to local businesses in order to use the toilet.

In September 2018, Mr Kane’s line manager, Mr Clayton, felt that he was underperforming and discussed implementing a Performance Improvement Plan (PIP). While his condition may have affected his concentration, Mr Kane asserted that his disability did not affect the quality of his work. He went off sick in September and did not return before his resignation in November 2018. Among the reasons for resignation mentioned in his letter, Mr Kane included the incidences at the Westbourne branch where he could not quickly access a toilet.

The bank argued that Mr Kane did not face a substantial disadvantage compared to his non-disabled coworkers because “the disadvantage suffered by somebody who desperately needs a toilet but cannot gain immediate access would affect anyone”. The ET rejected this argument, reasoning that as a result of his condition Mr Kane may experience bowel pain and spasms and would frequently have an urgent need for the toilet. He also had the constant anxiety of an accident. On two occasions he had to go to a local business to use the toilet, whereas a non-disabled employee would likely have been able to wait until the toilet was available again.

Mr Kane suggested adjustments that could have been made, including working arrangements similar to those he had at the Bournemouth branch. The company was unable to show why such adjustments would not have been reasonable. Therefore, the ET found the company did fail to make reasonable adjustments in respect of the physical features of the branch.

Mr Kane’s other claims of disability discrimination failed. 

Mr Kane was awarded £8,000 for injury to feelings and a further £1,692.05 in interest.

This case serves as a reminder to employers of the importance of making all possible reasonable adjustments for employees who are disabled. This includes a duty to make reasonable adjustments to the physical features of the workplace, in addition to adjustments to policies and procedures. 

If you have any questions regarding this article, you can call our Employment team today on 023 8071 7717 or email employment@warnergoodman.co.uk.

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ENDS

This is for information purposes only and is no substitute for, and should not be interpreted as, legal advice.  All content was correct at the time of publishing and we cannot be held responsible for any changes that may invalidate this article.