To move or not to move that is the question – is it better to change a location and make a reasonable adjustment than make no change in location at all?

Ms Garrett, a shop manager for Lidl, had Fibromyalgia - it causes pain, fatigue and muscle stiffness. There is no argument that it is a disability and one which had an adverse affect on day-to-day activity.

Lidl expects its managers to perform a very wide role - it is not just about supervision and organisation but shelf stacking, moving pallets, working in the freezer store and on check out - and anything else that comes along.

Ms Garrett's condition prompted various risk assessments by the business and some adjustments were made - more breaks, greater variety in her work to avoid too much repetitive movement, greater mobility and additional kit. Eventually she was suspended pending a report from Occupational Health and in May 2007 it was suggested she moved to another store as it was felt it would be a safer environment for her. She did not want to go and filed a grievance.

Her complaint was that the company could and should have made any changes it could make at the new store at the old one, and that the failure to do this was a failure to make a reasonable adjustment.

The company resisted this - its argument was that the old, Woolwich store, was a very pressured environment with many shoppers each spending very little (which made it hard for the store to hit is productivity targets and required staff to spend a lot of time on check out which did not help Ms Garrett's condition).

The new store had fewer customers, but they each spent more, and was a training base so had proportionately more people generally and specifically a higher ratio of managers. This allowed her more flexibility for management of her workload and the chance to avoid some duties altogether - like being a key holder. Not all of this could have been done or done so easily and with as little adverse impact had she stayed at Woolwich.

The company also relied on the express mobility clause in her contract - about which there was no argument and which had been used previously when she had moved stores. It also looked at the relative travel distance to work, proximity to her son's school (about which Ms Garrett had concerns given her son's health issues) and distance to her GP. All of these were the same as the distances to Woolwich.

In the Employment Tribunal (ET), the company won on the main issue - it had not failed to make a reasonable adjustment by moving her to the new store. Ms Garrett appealed on the basis that Lidl should have looked at making the changes at the old store - which were relatively straightforward given the size of the Lidl business - and that failing to do this and moving her to another store got the elements of the process in the wrong order. In effect if it could have been done without the move it should have been.

The Employment Appeal Tribunal (EAT) disagreed. It accepted that a move to another place of work was one of the alternatives anticipated by the Disability Discrimination Act (Section 18B(2)(e)) and explained that:

"Whilst within a large organisation it seems to us that there is no fetter on the adjustments best being achieved at an alternative place of work, it clearly makes good industrial sense for employers to consider first of all whether, if possible, those adjustments can be put into place at the existing workplace. However, we do not consider it unreasonable for employers, particularly where there is a mobility clause and the employee had worked at several stores, that the adjustments required can best be achieved by a move to another place of work".

Wragge & Co's experts provide some action points to consider in light of this judgment.