In West v Yorkshire Ambulance Service NHS Trust, Mrs West is a nurse who is disabled due to three conditions: osteoarthritis, asthma and depression. Her previous employment as a nurse at New Hall Prison was terminated by consent following long term sick leave as she was incapable of fulfilling her role. Mrs West applied to the Trust for a post as a 111 call advisor. She received a conditional job offer subject to satisfactory completion of pre-employment checks.

West’s occupational health assessment consisted of a telephone conversation with a nurse. The report highlighted that West’s mobility issues could create problems in fulfilling her role as a floor walker, i.e. as a clinical advisor she could be summoned to give advice to non-medically qualified people elsewhere. It also made specific recommendations for adjustments. However, the Trust viewed one of the adjustments of taking a regular break every 30 minutes of a few minutes as not practical.

The Trust also received a reference from New Hall Prison which outlined the circumstances in which she left.  The Trust uses references to establish attendance levels in the 24 months before the application. West was aware that as a condition of her offer, if the reference information disclosed that her trigger points of 10 days of absence in each of the preceding two years had been reached then the job offer may be withdrawn subject to a review of individual circumstances in accordance with the Equality Act 2010. The substantial periods of absence ‘appeared’ to be some 538 days, which meant the trigger points had been reached.

On the basis of the Occupational Health report and the reference, the Trust withdrew the job offer. An employment tribunal upheld West’s claim that the withdrawal consituted unfavourable treatment because of something arising in consequence of her disability under S.15 of the Equality Act 2010. The Trust’s presumption that West would have mobility issues and its perception that it was not practical for them to afford the adjustment suggested in the Occupational Health report was something arising from her disability. The long absences referred to in the New Hall reference which exceeded the Trust’s absence trigger points were also something arising from West’s disability. So could the Trust could justify the unfavourable treatment as a proportionate means of achieving a legitimate aim? The tribunal decided that it could not.

First, the Trust had misinterpreted the Occupational Health report.  The perceived problem that West would have mobility problems was “in fact illusory”, particularly given that it had subsequently been conceded that adjustments could have been made. Similarly, the contention that the report required taking breaks every 30 minutes was “a wholly unreasonable reading” of what the report said, because it was referring to postural breaks only. Secondly, with regard to West’s absence at New Hall, that was substantial, but her new role with the Trust would have been more sedentary and distinctly different to her previous job. The Trust did not consider the actual effect of West’s disability on her performance as a call centre advisor nor did they follow their own policy of reviewing individual circumstances when absence triggers were met.

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