The recent case of the Secretary of State for Work & Pensions v Macklin deals with the issue of disability discrimination in the workplace.

Miss Macklin had suffered from a number of health problems related to her diabetes. She also suffered from depression. Following an incident in work a colleague alleged that she had bullied her. An investigation was undertaken and this led to Macklin being signed off as sick due to anxiety and depression.

Michael Ball is an employment partner at law firm Halliwells

During her absence the employer consulted with her regarding her medical condition and the likelihood of her being able to return. However Macklin stated that she did not think she would ever be able to return to work but she hoped for ill health retirement. The retirement option was turned down on the medical evidence.

She was dismissed on grounds of capability after being on sick leave for nearly three years. She then successfully claimed unfair dismissal; failure to make reasonable adjustments, and disability related discrimination. On appeal.

The EAT confirmed the previous guidance given to tribunals when approaching a claim that there had been a failure to make reasonable adjustments. The starting point was to identify:

• The provision criterion or practice
• The physical feature of the premises if applicable
• The identity of non-disabled comparators, if any,  and
• The nature and extent of the substantial disadvantage suffered by the employee.

In this case, the tribunal had found that the working arrangements had made it difficult for the employee to manage her diabetes. However the proper test would be whether the arrangements had placed the employee at a substantial disadvantage when compared with a non-disabled comparator.

The tribunal had also referred to the employer being able to take steps to improve matters for her. However until it was found that she was at a substantial disadvantage, no duty to make reasonable adjustments even arose.

The tribunal had considered separately the position relating to her absence due to anxiety and depression and had correctly applied the first part of the test in finding that she was at a substantial disadvantage compared to a non-disabled employee who could attend work.

However it was then necessary for the tribunal to identify what adjustments could have been made to prevent that disadvantage. Stating that certain steps ‘could’ ‘may’ or ‘might’ have helped was not sufficient. The question was whether on balance the steps identified would have prevented the disadvantage.

A relevant factor to take into account when assessing whether there were any reasonable adjustments was Macklin’s own view that she could not see that she would ever return to work. The case was remitted to another tribunal.