Transcription

• Speaker #0

  Today in the Lefebvre HR and Employment Law podcast, we're discussing the judgment in the case of Mahoro and the Northern Care Alliance in which the Employment Appeal Tribunal has considered whether an employer failed to comply with its duty to make reasonable adjustments when it refused to make modifications to an employee's working hours and their laboratory equipment due to safety and operational concerns. Where an employee is disabled, the employer is under a duty to make reasonable adjustments or modifications to remove any substantial disadvantage faced by the employee in the workplace compared with a non-disabled employee. Whether a particular adjustment is reasonable will be determined objectively. In this case, M was a biomedical scientist team leader graded at band 6. The work of the biomedical scientists at the employer rotates across different sections and is carried out at laboratory benches which are higher than a normal office desk. M had a long-term spinal condition that affected her mobility and caused significant pain. After surgery, she returned to work on a phased basis, working half days. She subsequently submitted a flexible working request on the grounds that she wanted to avoid prolonged hours. Occupational Health supported her application and also recommended a special chair which moved on casters. The employer refused the flexible working request since working the requested hours of 8am to 2.30pm meant that M would be a lone worker for part of the time and the employer could not feasibly recruit another biomedical scientist to work the remaining hours at the end of the day. The employer investigated the possibility of providing M with a high lab chair on casters. Most companies did not supply such a chair due to the risk of falling and the employer could only obtain one if it agreed to sign a disclaimer, which, based on a past incident, the employer refused to do due to its increased risk. A number of further occupational health assessments were carried out and different chairs trialled for M. However, her physical symptoms deteriorated and she had concerns over her workload and later went off sick with stress. The employer instigated its long-term sickness procedure and continued to consider adjustments, including the use of a digital microscope, which would allow M to view an image on a screen rather than having to bend forward to look through the microscope itself. The employer conducted a trial of a digital microscope, but it was not considered to be effective by other staff members who tested it, and the employer concluded that its use would create a high risk of incorrect reports endangering patients. The employer subsequently dismissed M on the grounds of ill health. M brought claims in the Employment Tribunal, including for failure to make reasonable adjustments, and an Employment Tribunal dismissed her claims. M appealed to the Employment Appeal Tribunal in respect of her reasonable adjustments claim. The Employment Appeal Tribunal noted that the Tribunal had accepted that the use of a manual microscope exacerbated her symptoms, but that many of the roles of a biomedical scientist require the use of a microscope, and the employer had concluded that use of a digital microscope would endanger patients. The Employment Appeal Tribunal noted that the employer had given M's flexible working request for reduced hours and early finishes serious and detailed consideration but that the adjustment sought went beyond what would have been reasonable. This was a busy lab dealing with deadlines and work requiring prioritisation at different times. Delay in completing work could have a direct impact on patient safety and cause delays in other areas. Allowing M to finish early on a working day would leave work to be done by colleagues who had their own workloads, and there was a realistic concern about how difficult it would be to recruit a biomedical scientist to cover a few hours at the end of each working day, since this was not an attractive working pattern, and there was already a recognised shortage of biomedical scientists. In any event, a change in working hours would have been unlikely to facilitate a return to M's work as a biomedical scientist, since she could not use a manual microscope without exacerbating her condition. Similarly, in respect of the provision of a special chair on casters, this went beyond a reasonable adjustment. The employer's decision not to sign a disclaimer was not unreasonable and, even if an appropriate chair could have been found, it was unlikely that this would have addressed M's difficulties in using a manual microscope. The tribunal had given adequate reasons for reaching its conclusions and, accordingly, M's appeal failed. Look out for further episodes in this series to stay up to date on all things HR and employment law related.