Unpicking disability discrimination: alleviating the disadvantage and identifying the consequence of the disability 

Mr H Ahmed v Department for Work and Pensions EAT 107; July 14, 2022 

“…it is essential to consider whether the adjustment made actually alleviates the disadvantage faced by a disabled employee.”

Facts

Mr H Ahmed (HA) is disabled; he had been employed by the Department of Work and Pensions (DWP) since 2007. By December 2016 he had accumulated 22 days’ sickness absence in the previous 12 months. He was subject at that time to a regime where eight days absence in a rolling 12 months was a trigger point for consideration for management action under the DWP’s absence policy. He claimed that the provision, criterion or practice (PCP) which required him to achieve a particular rate of attendance to avoid being subject to the absence management procedure, placed him at a substantial disadvantage. 

HA also made complaints that other PCP’s, such as ‘being required to be flexible when taking his scheduled morning breaks’ and the requirement to ‘undertake an excessive workload’, also placed him at a substantial disadvantage because of his disability. 

HA had been assessed by occupational health and reasonable adjustments recommended. It was his contention that these adjustments were not being adhered to and, as a result, the respondent made repeated requests for him to work during his break and take on additional work. He submitted he was subject to unfair criticism as a result of refusing these requests.