Reasonable Adjustments and Criminal Convictions

Can an employer be required to discount criminal convictions as a ‘reasonable adjustment’?

 

No says the EAT in Howorth v North Lancashire Teaching PCT.  

The EAT held for the employer to dismiss an employee who had been convicted of theft, battery and dangerous driving did not constitute a failure to make reasonable adjustments. Sounds fair? The convictions listed are undoubtedly serious; however the case itself certainly gives cause for thought.

Were an employer to seek advice in relation to an employee who had been convicted of theft, battery and dangerous driving, it is likely we would give advice on dismissal. In this instance the situation was complicated by medical issues and the traumatic personal issues of the employee.

Mrs Howorth was a health visitor; she had a mental illness (automatism) and was disabled under the legal definition. She had no recollection of events which lead to her conviction. Those events being that she left Asda without paying for her shopping, forced her way from the shop, drove away trapping a person with her car door and with a shopper on her bonnet.

 

Prior to the incident Mrs Howorth was recovering from cancer treatment and a friend had recently passed away from cancer. In addition her husband had left her, her brother in law died and her son left home to go to University.  She was also carrying two caseloads at work as her colleague had gone off sick.

Even a less than reasonable person would have some sympathy for Mrs Howorth, her employer however did not. Mrs Howorth was dismissed following her convictions and her employer refused to re-employ her following her application for a different position.

 

The ET held that the employer had failed to make reasonable adjustments, she had no recollection of the events leading up to her conviction due to her disability, they had refused to consider adjustments to her role as an alternative to dismissal. The ET did however find that the dismissal itself was faire given the nature of the job she completed.

The Employer appealed on the basis that no adjustment could have succeeded keeping Mrs Howorth in work. The EAT agreed and stated although the employer had not fully considered alternatives, it could only breach the duty to make alternatives if there was an adjustment which could have avoided the disadvantage.