In Newham Sixth Form College v Sanders, Sanders suffers from a depressive illness and because of her disability she was unable to get to work on time with any regularity. Sanders was dismissed on the basis that her continual lateness could not be accommodated any longer and she had constantly failed to comply with reporting procedures. Sanders argued that the employer had failed to make two reasonable adjustments: (i) the requirement to attend work regularly at 8.45 am; and (ii) the requirement to telephone if she was going to be late or absent.

An employment tribunal upheld her claim. But, the Court of Appeal upheld the EAT’s ruling that the tribunal had not adopted the structured approach required by EAT rulings in RBS v Ashton and Environment Agency v Rowan when making its judgment and the decision could not stand. The reasoning in both cases was correct and in remitting this case to a different tribunal, the Court set out the approach to be adopted in such cases to be followed by tribunals and which, from a practical point of view, should also be followed by employers.

The central question is the fit between any proposed adjustment and the extent of the disabled person’s disadvantage. To determine whether the duty to make a reasonable adjustment under S.20 of the Equality Act 2010 (EA 2010) applies and has, or has not been, met, the following must be identified:

– The relevant provision, criteria or practice, physical feature of the premises or non-provision of an auxiliary aid which puts a disabled person at a     substantial disadvantage compared with persons who are not disabled;

– The identity of the non-disabled comparators;

– The nature and extent of the substantial disadvantage suffered by the disabled person; and,

– The reasonableness of the proposed adjustment (see paragraph 6.28 of the EHRC Employment Code), which includes whether taking any           particular step would be effective in preventing the substantial disadvantage.

Note that while this case was decided under the Disability Discrimination Act, the principles remain the same, but the ‘auxiliary aid’ element has been added above to reflect the EA 2010.

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