[Thanks to Robert Dickason of Outer Temple Chambers for preparing this case summary]
The EAT (Langstaff J) has handed down its decision in RBS v Ashton, which reiterates that the test for a failure to make reasonable adjustments under the Disability Discrimination Act 1995 is objective. What matters is the practical effect of the adjustment on the disadvantage suffered by the claimant, not the reasoning of the employer "flawed or otherwise" for not making it.
The claimant had her sick pay withheld under the employer's sickness absence policy. However, the evidence before the Tribunal was that the triggers for withholding sick pay would be relaxed for employees whose absences were disability-related. To that extent, disabled employees benefited when compared to non-disabled employees. The EAT noted that only in exceptional cases would withholding sick pay in accordance with a sickness absence policy amount to a failure to make reasonable adjustments.
The Tribunal also erred in upholding the claim for disability-related discrimination. One cardinal error was failing to consider, on the issue of justification, whether the reason for the difference in treatment was material and substantial: "[T]he Tribunal's excursion into what was or was not reasonable in this context might have been interesting but it was not answering the statutory questions".