EAT Disability Discrimination : Reasonable Adjustments – UNFAIR DISMISSAL – Reasonableness of dismissal
The Employment Tribunal, by a majority, found that the Respondent was in breach of a duty to make reasonable adjustments for the Claimant because it would have been a reasonable adjustment to disregard a final written warning.
Held: (1) The majority had been entitled to find that the PCP applied was a requirement of consistent attendance, and that the Claimant was placed at a substantial disadvantage compared to non-disabled persons by virtue of that requirement. Royal Bank of Scotland v Ashton [2011] ICR 632 and Griffiths v Secretary of State for Work and Pensions (UKEAT/0372/13) considered. (2) However the majority erred in that it did not identify any ‘step’ for the purposes of section 20(3), concentrating instead on the Respondent’s process of reasoning, and in any event the majority set out no sustainable basis for saying that disregarding the final written warning was a step which it was reasonable for the Respondent to have to take.
The Employment Tribunal unanimously held that the Claimant’s dismissal had been procedurally unfair because it did not review the final written warning.
Held: the Employment Tribunal erred in law. The guidance in Davies v Sandwell MBC [2013] IRLR 374 shows that an employer is not required to re-open a final written warning save in limited circumstances. If the Employment Tribunal had truly applied the standard of the reasonable employer, it was not open to it to find, in the circumstances of this case, that the Respondent was required in any way to discount or re-open, wholly or in part, the final written warning.
David Richardson HHJ
[2014] UKEAT 0107 – 14 – 1009
Bailii
England and Wales
Employment
Updated: 22 December 2021; Ref: scu.537756