Flexible start

When claiming a failure to make a reasonable adjustment, claimants have to show that their employer applied a provision, criterion or practice (PCP) which put them at a particular disadvantage, compared to employees who were not disabled. In Appleby v Governing body of Colburn Community Primary School and anor, the Employment Appeal Tribunal (EAT) held that allowing Ms Appleby a flexible start time was not a reasonable adjustment.

Basic facts

Ms Appleby got a job as a general teaching assistant in January 2007. In mid-2007 she was diagnosed with narcolepsy which constituted a disability within the Equality Act 2010. She was off sick on various occasions during 2010 and 2011 but these absences became more frequent in 2012 after she received some very distressing personal news. In spring 2013 she was diagnosed with depression although it was difficult to separate the effects of narcolepsy from the depression.

As a disabled person, she asked the school to make a number of adjustments. These included: adjusting the triggers in the school’s Absence Monitoring Policy (AMP) and discounting certain absences; treating those absences as disability related; and allowing her a flexible start time each morning.

After being dismissed with notice in October 2013, she claimed disability discrimination on the ground that the school had failed to make reasonable adjustments, among other things.

Tribunal decision

The tribunal found that, from autumn 2011, Ms Appleby suffered from a disability, namely narcolepsy. In addition, from April 2013 onwards, she suffered from a mental impairment. It also found that the school had applied two PCPs - the AMP, and the requirement to attend work by 8.45am.

In relation to the first PCP, the tribunal found that only the mental impairment had put Ms Appleby at a disadvantage relative to non-disabled employees, since it had caused the “triggers” within the AMP to be activated. The other PCP had placed her at a disadvantage relative to other non-disabled employees from April 2013 onwards in relation to both the impairments. It also found, however, that although the school knew about her narcolepsy, it did not know about the mental impairment. The duty to make reasonable adjustments in relation to the AMP did not, therefore, arise.

The duty to make reasonable adjustments did, however, arise in relation to the disadvantage to Ms Appleby as a result of her narcolepsy from September 2013, in terms of having to comply with the 8.45am start time. Nevertheless, the tribunal rejected her claim on the basis that the demands of a school required the physical presence of staff at particular times because of the vulnerability of children and the need to supervise them.

EAT decision

The EAT dismissed the appeal, holding that the tribunal was right to conclude that Ms Appleby had not started to suffer from a disability consisting of a mental impairment until April 2013.

With regard to the issue of reasonable adjustments, the tribunal had not made any legal errors with regard to the school’s constructive knowledge of her disability. Likewise, it had not made any mistakes with regard to its finding that the school’s decision to dismiss her was a proportionate response in order to meet its legitimate aim of the efficient administration of the school.