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IS A CHANGE OF LOCATION A REASONABLE ADJUSTMENT
May 2010
IS A CHANGE OF LOCATION A REASONABLE ADJUSTMENT?
The Employment Appeal Tribunal has ruled that moving a disabled employee to another location was a reasonable adjustment. But what had the employer put in its contracts that helped its case?
Must be reasonable
The Disability Discrimination Act 1995 (DDA) places a clear duty on employers to make reasonable adjustments for disabled employees. This is to ensure that they do no suffer any “substantial disadvantage” in the workplace as a result of their disability.
New EAT case
But in a recent case – Garrett v Lidl Ltd 2010 – the Employment Appeal tribunal (EAT) had to decide whether Lidl (L) had fulfilled its duty under the DDA by transferring Garrett (G) from her normal place of work to another nearby location.
Problems coping
G suffers from fibromyalgia, a condition that causes pain, fatigue and muscle stiffness. L had already made a number of adjustments at G’s normal place of work but following a new risk assessment, it was decided that she could not cope with working at its busy Woolwich store.
Solution? Because of this L suggested to G that she transfer to a quieter one at Welling, a few miles away. She took some persuading, but eventually went along with the idea.
No satisfaction
However, G then went off to the employment tribunal claiming that L had failed to make reasonable adjustments at her new workplace. As employees often do, she threw in claims of harassment and victimisation for good measure. The tribunal rejected her claim, so she appealed.
Correct approach
The EAT upheld the tribunal’s decision saying it was clear that the Welling store was under less pressure than the Woolwich one. It also highlighted the fact that it was a much quieter store, G’s rest periods could be lengthened and the volume of her work was much lighter. So L’s decision to relocate G to that branch was the correct one and in doing so it had discharged its duty to make reasonable adjustments.
Helpful contract clause
But one key point in L’s favour was the mobility clause it had placed in G’s contract of employment requiring her to work at other nearby locations. It had previously used this to move G around and she had agreed without complaint. This helped it to show it was acting reasonably, i.e. L was not suggesting something to G that she had not previously been prepared to do.
Note. Although it’s easier for larger employers to transfer staff to another location, the EAT said that any employer could be justified in proposing such a step, e.g. some homeworking.
Tip 1. You cannot force an employee to go along with your proposed adjustments, but if they refuse, ask them why. If their objections are unfounded, it will strengthen your position
Tip 2. Any proposed relocation should be a reasonable one, e.g. no significant increase in travel to the new workplace. In some cases, a trial transfer period might help you to “sell” the idea.
Source: Tips & Advice Personnel 15 April 2010
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