Failure in the making

Section 20 of the Equality Act 2010 states that employers are under a duty to “make” reasonable adjustments to avoid discriminating against disabled people in certain circumstances. In Ukegheson v London Borough of Haringey, the Court of Appeal held that employers cannot be guilty of discrimination for a failure to “consider” making adjustments as opposed to a failure to make them.

Basic facts

Mr Ukegheson, who has dual British and Nigerian nationality, was the deputy manager of a support centre operated by Haringey. He resigned in January 2013 claiming that there had been a breakdown in the relationship between himself and his manager.

As well as a claim for constructive unfair dismissal, Mr Ukegheson made some 20 claims of discrimination on grounds of sex, race, religion, harassment, victimisation, and disability discrimination.

The basis of his claims was that his line manager, Ms Osho, knew he was a church-going Christian but had still required him to work extra Sundays, the day before he resigned. He also contended that as a cancer sufferer, he needed Sundays off to pray for healing, which he considered an important factor in his survival. Furthermore he said he should have flexible working hours so that he could start at 10am rather than 9am citing disruption to his family life and the extra cost of childcare.

Tribunal and EAT decisions

The tribunal considered the claims and ordered a Pre-Hearing Review. At that hearing his claim of disability discrimination was clarified and included a failure to consider reasonable adjustments. The London Borough of Haringey made an application to strike out his claims and a further preliminary hearing was held.

At this hearing Mr Ukegheson made written submissions in relation to the reasonable adjustments claim and explained that it was not just a failure to consider but a failure to make the reasonable adjustments. He also asked for permission to amend. However, no application to amend was made and his pleaded case on disability discrimination remained as a failure to consider making reasonable adjustments. In the event the employment judge stuck out all his claims.

The EAT allowed his appeal in part and remitted some claims back to the tribunal. However, the claims for disability discrimination, for failure to consider reasonable adjustments and religious discrimination were not remitted back to the tribunal as, in the EAT’s view, they could not succeed.

Decision of Court of Appeal

Starting with the disability discrimination claims, the Court of Appeal held that the reason Mr Ukegheson wanted to start at 10am was so that he could take his children to school first. Although this was not an unreasonable thing to want to do, it had nothing to do with his disability as a cancer sufferer. It therefore concluded that Haringey was not guilty of disability discrimination for failing to agree to change his starting time from 9am to 10am.

As for the claim that Haringey had failed to make reasonable adjustments, the Court of Appeal held that this was not what Mr Ukegheson had set out (pleaded) in his original claim form. Instead he had said that his employer had failed to “consider” making adjustments. As he had not taken the opportunity when it was open to him to amend the pleadings so that it reflected the case that he actually wanted to run, the Court held that it was not open to him at this stage to challenge the order on the pleadings as they stood.

It therefore dismissed the appeal.