The Respondent failed in its duty to make reasonable adjustments by requiring the disabled employee to undergo a recruitment trawl for a post they occupied as a result of a reasonable adjustment previously made.

The claimant is employed as a Custody Prison Officer in a prison in Northern Ireland.  The case related to alleged direct disability discrimination and a failure to make reasonable adjustments in the claimant’s application for a role within the Prisoner Development Unit (PDU).

The claimant outlines that she was transferred to the role of Personal Development Plan Co-Ordinator in the PDU following diagnosis of Fibromyalgia and Rheumatoid Arthritis. The claimant stated this was suitable for her in light of her disability. In June 2023 the claimant was successful in a recruitment trawl for this role.  In 2024, the respondent mandated that all PDU staff had to take part in a further recruitment trawl.  The claimant (and three other non-disabled PDU co-ordinators) was unsuccessful and was informed she would be transferred back to the role of Custody Prison Officer.

The respondent argued that the move to PDU was not a reasonable adjustment but rather she was given temporary adjusted duties to facilitate her return to work.  The respondent further asserted that the role was not, in any event, suitable for her in light of the adjustments she stated were necessary.

The Tribunal accepted that the claimant had sought reasonable adjustments from around October 2021. These were formalised in October and December 2022.  Following these formal requests the claimant was moved to PDU and the Tribunal found that was a reasonable adjustment. The Tribunal also found that the PDP Co-Ordinator role was one which was suitable for the claimant in respect of the reasonable adjustments she had sought.

The respondent stated that the move to PDU was not permanent, but they are ‘mobile grades’. Their case was that prison officers can be moved to roles anywhere within the prison at the direction of the Governor in order to meet business need.  This led to a dispute as to whether the move was permanent following the first recruitment trawl where the claimant was successful. The Tribunal accepted that such redeployments may be necessary at the direction of the Governor for business efficiency. However, the Tribunal did not accept that the roles were not permanent within the prison service. As a result, the Tribunal found that the claimant was in a permanent role within PDU which accommodated her reasonable adjustments.  This was evidenced by the fact there was a recruitment trawl whereas a mobile grade and the mere direction of the Governor would not require such a trawl.  In terms of the second recruitment trawl, the Tribunal found there was a failure to make reasonable adjustments for the process or following the outcome. This was evidenced by a Governor stating that they were not aware it was for an adjustment and that could not be allowed as it would mean she (the claimant) is receiving an advantage.

On the claim of direct disability discrimination, this was dismissed as the claimant was unable to show that a hypothetical comparator with no disability would have been treated more favourably than her. The requirement was imposed on all staff to compete in the 2024 trawl and as a result the claimant was not treated less favourably.

The claim of failure to make reasonable adjustments was successful. This related to the requirement for employees to go through the recruitment trawl and the claimant argued that it would have been reasonable to permit her to remain in her role and not go through the trawl or by placing the claimant in a similar role within an alternative unit. The Tribunal concluded that these would have been reasonable in the circumstances and removed the substantial disadvantaged faced by the claimant as a result of her disability. The Tribunal accepted this would mean treating her more favourably than non-disabled colleagues but with reference to the speech of Baroness Hale in Archibald v Fife, the Tribunal noted that the duty to make reasonable adjustments can require disabled employees to be treated more favourably than others.  An award of injury to feelings of £20,000 was made and an award of loss of earnings (due to the lack of adjustment and losing the PDU role and reduced hours due to the physical demands of the custody role) of £13,921.45.

The question of what constitutes a reasonable adjustment can be a difficult one considering the varied contexts of an individual’s work and their disability. The comment can also be made that it can unduly advantage a disabled colleague compared to non-disabled colleagues.  However, the law is very clear on this point: where the duty to make reasonable adjustments gives a disabled employee an advantage, that is both permissible and to be expected. This goes back to ensuring that those suffering with disabilities can be supported within their workplace and to stay within employment.  As a result, it was expected that that additional support may be seen as receiving an advantage. That point was made in the context of the recruitment trawl process and was relied upon as evidence of a failure to make reasonable adjustments.

NI Tribunal decisions are available on the OITFET website.