DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL – Constructive dismissal
Disability discrimination – reasonable adjustments – sections 20 and 21 Equality Act 2010
Unfair dismissal – constructive dismissal – section 95 Employment Rights Act 1996
The Claimant, who had been employed by the Respondent as a Probation Service Officer (‘PSO’) from April 1999, was a disabled person for the purposes of the Equality Act 2010 by reason of his anxiety and depression; something of which the Respondent had constructive knowledge from 2014. It was accepted that the provision, criterion or practice (‘PCP’) of requiring him to undertake urgent Court duties placed the Claimant at a substantial disadvantage and when the Claimant returned from a period of ill-health absence in April 2015 he was put into an Enforcement Officer role that did not require him to do these duties. Going into the autumn of 2015, however, the ET found the Claimant’s duties essentially slid back to his former role and included the Court duties that placed him under particular stress. The Claimant responded badly to this and began to avoid attending Court. In early and mid-February 2016, he asked the Respondent to consider moving him to a different role as a Victim Liaison Officer (‘VLO’) but no enquiries were made, although a VLO vacancy was advertised in March, only 11 days after the Claimant’s second request. In late February 2016, the Claimant was involved in an altercation at work and left, commencing a further period of sick leave. In early April 2016, the Claimant was offered a position in the Offender Management Unit (‘OMU’). He raised a number of concerns about this but the ET found his subjective fears were ill-founded and the Respondent had complied with its obligations to make reasonable adjustments. The ET was also satisfied that the Claimant was employed in a generic role such that he could be moved to other positions by the Respondent, including the OMU post. In any event, the Claimant had been given time to think about the OMU offer but had decided instead to retire. His retirement was accepted by the Respondent, thus bringing his employment to an end by mutual agreement. The Claimant appealed.
Held: allowing the appeal
The Claimant’s complaint of a failure to make reasonable adjustments was not limited to events in March/April 2016 but also encompassed the latter part of 2015 and early 2016. On the ET’s findings of fact, the Claimant’s Enforcement Officer position had changed such that he was again subject to the PCP (Court duties) that placed him at a substantial disadvantage; the ET had, however, not demonstrated that it had engaged with the Claimant’s complaint that the Respondent had failed to comply with its obligation to make reasonable adjustments at this stage. This was also the case in respect of the Claimant’s complaint that the Respondent had been under an obligation to look at the possibility of alternative positions when he raised the question of moving to a VLO post in February 2016; although the ET had been entitled to assess the reasonableness of the Respondent’s subsequent step (offering the Claimant the OMU role) on an objective basis, it was not irrelevant to that assessment that the position being offered was likely to exacerbate the Claimant’s stress (the substantial disadvantage of which he complained) and there seemed to be another role available that did not have that effect. If seen in the light of the Claimant’s case as to the obligation to make an earlier reasonable adjustment, the ET might have better appreciated the relevance of the point. Separately, the Claimant was contending that the OMU role did not fall within his contract. The ET rejected that argument, finding he was employed in a generic position, allowing the Respondent to move him to other roles. Its conclusion in this regard was, however, inadequately explained. And, although the ET had found that the Claimant had not left his employment because of any breach of contract, that conclusion was rendered unsafe once regard was had to the potential relevance of the history from the autumn of 2015 and the first two months of 2016. In the circumstances, the ET’s decisions on the Claimant’s claims could not stand and the matter would be remitted to a different ET for re-hearing.
Citations:
[2018] UKEAT 0274 – 17 – 2903
Links:
Jurisdiction:
England and Wales
Employment
Updated: 22 April 2022; Ref: scu.616884