In Robinson v DWP, Ms Robinson suffered from a severe migraine condition which led to her being unable to use computer screens without magnification and other support. The programme she was required to use in her job as a debt manager required that she be able to see the whole screen at once, but the magnification software only worked on parts of the display. Solutions using two screens were unsuccessful in making it possible for Robinson to use the systems necessary for her role. She raised a grievance relating to considerable delays in making the adjustments necessary to enable her to work and the stress this had caused. Her initial grievances were upheld.
Eventually, it became clear that the equipment could not be adjusted or supported in a way which made it possible for Robinson to carry out her role, and she was moved to a different job within the same department and at the same grade, but using paper-based systems instead of the screen-based systems used by most of the department.
Robinson brought claims for compensation for unlawful discrimination on grounds of her disability – it was accepted by all that she had a disability within the meaning of the Equality Act 2010 – and for her employer’s alleged failure to make reasonable adjustments.
The Court of Appeal accepted that it simply was not possible to make the adjustment Robinson sought, enabling her to use the programmes required so that she could remain in her existing role. It agreed with the view expressed in the tribunal, that an employer is “not obliged to create a role for an individual where none exists” as part of the obligation to make reasonable adjustments. This is an important confirmation which gives some clarification as to the extent of the employer’s duties when faced with problems that prove insoluble, in terms of an individual’s ability to access the tools necessary for their employment.
Discrimination on grounds of disability can be justified if the discriminatory conduct can be shown to be a proportionate means of achieving a legitimate aim. The Court of Appeal accepted that the aim of keeping Robinson in work and at the same grade was a legitimate aim (indeed it described this as a “legitimate objective par excellence”). The effort to adjust the systems to suit her had been lengthy and thorough, but ultimately had failed and so moving her to another role was a proportionate act. This is a useful recognition of the practicalities faced by the employer.
The judgment also considered whether discrimination claims arise where the employee can show that, but for their disability, they would not have been placed at a disadvantage. The Court of Appeal confirmed that this is not the right test. The legislation refers to unfavourable treatment arising “because of” the discrimination and requires some examination of what is in the minds of the employer when it acts. In this case, attempts were made to resolve Robinson’s situation so that she could continue to work in her existing role, and these proved not to be possible, so moving her to another role did not amount to placing her at a disadvantage because of her disability.
Helpfully for employers, the court notes that the mishandling of a grievance will not itself be automatically discriminatory simply because the subject matter of the grievance concerned discrimination. While there were delays, these were not due to the claimant’s disability, but rather to the lengthy and unsuccessful attempts to make changes to enable her to stay in her role.
This case provides useful guidance for employers that take steps to do what they can to resolve the disadvantage caused by an individual’s disability, and it notes that in some cases, it simply will not be possible to achieve the goal of keeping the individual in the same role without disadvantage. In such cases, no right to compensation will arise.
Yvonne Gallagher is an employment partner at Harbottle & Lewis