Legal case – Cherrington v Home Office

Legal case – Cherrington v Home Office [2015]

Summary

• A disabled woman who had dyslexia and sight loss was unable to start a job she was offered in 2007 because of computer software compatibility problems.
• She was offered an alternative position but was unable to do the job because her employer failed to make reasonable adjustments for her in that role because of the cost quoted by its outsourced IT provider. 
• She only worked for two of her seven years of employment with the Home Office, for most of her employment she was on sick or disability leave.
• The Tribunal said that a service level agreement with an outsourced IT provider was not a defence for a failure to make reasonable adjustments. 
• The employer used paid disability leave as an excuse for not making adjustments and failed to act on Access to Work recommendations. 
• It also wrongly suggested she should apply and compete for alternative positions within the organisation rather than transferring her to a suitable alternative position as the law requires. 
• She was awarded £14,000 in compensation for injury to feelings.

Full details 

The Home Office employed Ms Cherrington as an administrative officer in the UKBA Asylum Routing and Operation Team. She has aniridia, which causes sight loss, and dyslexia.

Access to Work assessment and redeployment

She applied for a role with the Home Office via the charity The Shaw Trust in 2007 and was offered a post dealing with telephone calls to the Immigration Enquiry Bureau. She never started this role because after the job offer, she was told that there was a computer software compatibility problem. The Home Office looked for another suitable post for her and after an assessment by Access to Work, she was offered a post as an administrative officer.

This role involved extensive use of the Home Office IT systems, so Access to Work recommended adapting hardware and software to enable her to do the job. The Home Office implemented some of the recommendations in 2008, but then further recommendations were made which were not implemented.

Ms Cherrington only worked for two of her seven years of employment with the Home Office. For most of her employment she was on sick or disability leave.

Second Access to Work assessment and failure to supply equipment

After she lodged a grievance with her employer another Access to Work assessment made further recommendations about computer equipment. The supplier that Access to Work recommended, T&T Consultancy, said it could provide the equipment for £8,535.  The Home Office, however, asked its’ contracted supplier Fujitsu, for a quote for the equipment. That quote was for £109,330, which was later reduced to £75,000.

As the Home Office did not make a decision on purchasing the equipment Ms Cherrington submitted another grievance.

The Home Office finally decided that it had complied with its reasonable adjustment policy in identifying reasonable adjustments but that the costs of the adjustments were neither proportionate nor reasonable. Ms Cherrington submitted another grievance, so the Home Office decided to stop the adjustments process. The Fujitsu proposal was cancelled, and the Home Office held that there was no case to answer on any of Ms Cherrington’s grievances.

Further Access to Work assessments

A further Access to Work assessment was carried out but no one from management attended. New computer software and hardware were recommended together with a quote for £4,500 for providing them. Almost a year later, the Home Office returned to the issue of providing reasonable adjustments for Ms Cherrington and it questioned the quote of £100,000 from Fujitsu. The Home Office suggested yet another Access to Work assessment which made recommendations at a cost of £4,686.

Ms Cherrington is asked to apply for other roles

During this time Ms Cherrington had been told that she could look for vacancies on the Home Office’s vacancy bulletins. As a disabled person she would be guaranteed an interview for any post for which she was qualified, but she was told that she would have to compete with other candidates for the role.

Requiring a disabled person to apply and compete for alternative positions was found to be unlawful in the case of Archibald v Fife Council (2004) and Ms Cherrington should have been transferred to a suitable alternative vacancy.

Ms Cherrington made a claim to the Employment Tribunal for disability discrimination which was successful.

The Employment Tribunal’s decision

The Tribunal found that the Home Office had become “side-tracked by the grievance process and had lost sight” of the fact that they were paying a disabled employee and needed to make reasonable adjustments to enable her to work”.

It also said that the Home Office should have had an appropriate manager or IT specialist present at the Access to Work assessment and that there was no rationale for deciding to put the reasonable adjustments process on hold while the grievances were dealt with. It added that the Home Office had “used the paid disability leave as an alternative to addressing the issues”.

The Tribunal accepted that the Home Office had made some adjustments, but these had not enabled Ms Cherrington to use its IT systems and so had not removed the disadvantage she faced. The Tribunal also accepted that the Fujitsu quote was a substantial cost given that Ms Cherrington’s salary was around £21,000 . It said that “the relative sum of £109,000 or even £75,000 as the revised figure, was disproportionate and would not have amounted to a reasonable adjustment”.

However, the Home Office had not proved that the cost of making the reasonable adjustments that would have removed the disadvantages Ms Cherrington faced was prohibitive. This was because “they did not, in the material period, do anything to resolve the huge disparity in the figures from Fujitsu and T&T Consultancy”.

The procurement point – The contract with the outsourced IT provider

On this point, the Home Office argued that it was contractually obliged to use Fujitsu. The Tribunal had not seen this contract but decided nevertheless that it did not consider that “a service-level agreement with Fujitsu amounts to a defence to the duty to make reasonable adjustments”. It further held that the Access to Work assessment “clearly envisaged adjustments that fell well within the range considered reasonable by the respondent” in terms of cost. As the Access to Work assessment expected that its recommended  adjustments would have been effective, the Tribunal concluded that the Home Office had failed to comply with its duty to make reasonable adjustments.

Disadvantages suffered by Ms Cherrington

The Tribunal also held that Ms Cherrington had suffered a substantial disadvantage. First, she had the risk of dismissal hanging over her if reasonable adjustments could not be made and, by being unable to do the job for which she had been hired she was denied “the social and personal benefit…. in terms of both self-worth and contribution to working life, and had lost the opportunity to develop skills and make progress in her work.

Regarding the alternative role which Ms Cherrington had been told she could apply for, the Tribunal found that the reasonable adjustment would have been “to look for a role by way of a managed move rather than a competitive selection process”. This is in line with the House of Lords decision in Archibald v Fife Council (2004). The Tribunal found that Ms Cherrington “was given very little support to secure an alternative role with the respondent”.

Remedies

As the Home Office still employed Ms Cherrington, the compensation was for injury to feelings alone.

The Tribunal had heard that Ms Cherrington had found the situation frustrating and upsetting, and she had been left with low self-esteem and a feeling of isolation. It concluded that Ms Cherrington “is someone who wants to work despite significant disabilities” and “she has lost the social and personal benefits of attending work and feeling valuable in society” and awarded her £14,000 in compensation.

It declined to recommend purchase equipment, finding a suitable alternative vacancy or providing disability awareness training. The Home Office was aware of its ongoing duty to make reasonable adjustments and Ms Cherrington had the right to enforce that duty should there be any further failure on the part of the Home Office to comply with it by bringing further disability discrimination claims before the Tribunal.

Comment

Employers have a legal obligation to make reasonable adjustments for disabled employees.

This case shows that it is not enough for an employer to have reasonable adjustment policies, disability leave provisions, Access to Work assessments and service level agreements with providers of adjustments. The legal duty is to make reasonable adjustments that will remove or reduce the disadvantage faced by the disabled employee to enable them to work. Reasonable adjustments must be implemented.

Most importantly, employers cannot abdicate their responsibility to make the adjustments to outsourced providers and rely on the cost quoted by a contracted supplier to decide that adjustments are unreasonable when alternatives are available. Where an employer receives vastly different quotes for reasonable adjustments by an outsourced provider, they must explore the reasons for the difference in cost. It will not be sufficient to rely on the most expensive quote as a reason not to make the adjustments.