The area of disability discrimination is one that many employers find challenging, particularly when it comes to making what is known as “reasonable adjustments” for disabled employees to assist them in overcoming any disadvantage their disability might cause them at work.

The first point to note is that the duty to make adjustments only arises at the point at which the employer has actual knowledge of the disability and the disadvantages it might cause, or has sufficient information such that it should have been able to obtain that knowledge had it taken reasonable steps to do so.

This point was recently highlighted in the case of Preston v. E.ON Energy Solutions Ltd. Mr. Preston worked as a customer service advisor. He suffered from a disability called primary reading epilepsy (PRE), as a result of which he suffered from short “absence seizures” while reading; these might only last a split second, and looking away from the reading material or taking a short break usually helped to reduce their frequency.

E.ON was not aware that Mr. Preston suffered from PRE at the time his employment commenced, and although he briefly mentioned it to his first manager, he did not raise any issues or concerns about his ability to undertake his work as a result of PRE—in fact, he consistently performed well.

Mr. Preston later commenced a period of absence due to work-related stress, and as part of a proposed return to work, advice was taken on adjustments that could be formalised to assist him in managing his condition. Mr. Preston argued that E.ON should have had “imputed” knowledge of his PRE earlier, and therefore the duty to make adjustments for him arose from the beginning of his employment. However, both the Employment Tribunal and the Employment Appeal Tribunal disagreed.

They found that Mr. Preston had made it clear that his condition did not cause him any significant disadvantage, and there was nothing in his words or his conduct at work that might suggest this was not the case. It was only after his later occupational health reports referred to the matter in more detail that E.ON could be said to have had sufficient information about PRE and its effects for the duty to make reasonable adjustments to arise.

This case highlights the importance, from an employee’s point of view, of providing clear information to an employer about any conditions they might have that have the potential to affect their work and making clear what that link might be. If an employee has a health condition that doesn’t affect their work at all, then the employer does not have a duty to make any adjustments for them. Similarly, it is important that if any employee raises a health issue, the employer takes steps to understand what that might mean for the employee’s ability to undertake their work.

Clearly, speaking to the employee is important, but it may often be sensible to refer the employee for an occupational health assessment as well, since this will provide the employer with clear advice on both the condition itself and the potential issues that might arise in a work setting.

An employer must then ensure that it considers what adjustments might be required at work and how these might be implemented. The important factor to note here is that an employer is required to make adjustments that are “reasonable.” The question of what is reasonable will depend on the circumstances, but will usually involve consideration of how feasible it is to implement the required adjustments, taking into account the costs of doing so and the impact on the wider workforce.

In Mr. Preston’s case, the adjustments required were not complex, and E.ON was willing to make them—but Mr. Preston was not willing to return to work.

Ultimately, he was dismissed as he was deemed fit to return to work, all reasonable adjustments had been offered, yet he still refused to even consider a phased return on a trial basis.

Although he argued that his dismissal was unfair, it was clear that E.ON had done everything they could have done to facilitate his return to work—and when he still refused, it was entirely reasonable for them to conclude that his employment could no longer continue.

Safia Tharoo
Barrister, 42 Bedford Row, London