M&S penalised for delay in making a reasonable adjustment for a disabled employee

An employment tribunal has ordered Marks & Spencer to pay £1000 to a disabled employee because of the retail store’s delay in supplying him with a lift key to allow him to get to the toilets more easily. The tribunal ruled that the store had breached its legal duty to make reasonable adjustments for disabled employees.
Equality law recognises that achieving equality for disabled people at work may require providing extra support for a disabled worker (or job applicant), This is reflected in the duty to make reasonable adjustments. When the duty arises, an employer must take steps to remove or reduce or prevent the obstacles faced by disabled workers at work.
In this case, the Claimant worked as a Customer Assistant at Marks & Spencer’s Covent Garden Store. It was accepted that he was disabled by reason of a medical condition that caused him to require the toilet more frequently than the average person, typically once or twice an hour but on occasions as frequently as every 10 minutes.
The store’s policy required employees to use the staff toilets on the second floor. The staff toilets could be accessed by the goods lift or more easily by using the customer lift but that required a key that permitted the lift to travel to the second floor.
The Claimant requested a key to the customer lift under the duty to make reasonable adjustments for his medical condition. He was told to use the goods lift until a new key was cut. He was provided with a lift key after 10 days.
The Claimant took exception to the delay in providing the lift key and brought a claim in the employment tribunal alleging that M&S had failed to comply with the duty to make reasonable adjustments under the Equality Act 2010.
ET Decision
The tribunal rejected M&S’s argument that there was not much difference between using the customer lift and using the goods lift and decided that the disadvantage to the Claimant in not being able to use the customer lift for 10 days was substantial compared someone without the Claimant’s medical condition.
Regarding M&S’s delay in providing the lift key, the tribunal said that:
“there can be little excuse or explanation for the Respondent as an organisation, in the circumstances, not providing the Claimant with a key for 10 days when there were keys available and when the cost of cutting a further key was agreed to be £3. 43.”
The Claimant was awarded £1000 as compensation for injury to feelings. The tribunal decided on this figure, given the short duration of the period of the failure to make the reasonable adjustment, the lack of malice or deliberate conduct by M&S, and the relatively minor character of the injury to feelings.

Comment

The most notable feature of this case is the fact that the employer did make the required adjustment; their mistake was that the adjustment was not made sooner. In similar circumstances, employers should bear in mind that even trivial delays in implementing reasonable adjustments could result in liability for disability discrimination.