EAT Practice and Procedure – Appellate jurisdiction/reasons/Burns-Barke
Disposal of appeal including remission
Disability Discrimination – Reasonable adjustments
Unfair Dismissal – Constructive dismissal
Employment Tribunal reasons – duty to make reasonable adjustments – Constructive dismissal. Remission to same Employment Tribunal.
HHJ Peter Clark said: ‘ The proper approach for an Employment Tribunal to take when considering an alleged breach of s4A(1), read with s18B (and now bearing in mind the application of the ‘reverse burden of proof’; s17A(1C)) was considered and guidance given by HHJ Serota QC in Smiths Detection v Berriman (UKEAT/0712/04 and 0144/05/CK. 9 August 2005. Unreported); see para. 85. That approach was endorsed by HHJ McMullen QC in Ferguson v London Borough of Barnet [2006] All E.R. (D) 192; applied by a division on which I sat in Romec v Rudham (UKEAT/0069/07/DA. 13 July 2007. Unreported); see particularly paras. 39 – 40 and further affirmed by Judge Serota in Environment Agency v Rowan [2008] IRLR 20, paras. 26 – 27.
The Employment Tribunal should identify:
(1) the provision, criterion or practice (PCP) applied by or on behalf of an employer, or
(2) the physical features of premises occupied by the employer;
(3) the identity of non-disabled comparators (where appropriate) and
(4) the nature and extent of the substantial disadvantage suffered by the Claimant.
Whilst we agree with Miss Smith that in Berriman Judge Serota was not laying down an inflexible rule that in the circumstances there mentioned there must always be medical evidence supporting a conclusion that a proposed adjustment had a real prospect of preventing the disadvantage identified, it is nevertheless necessary for the Employment Tribunal to explain, on the evidence which it has heard and the facts found, why and how far the proposed adjustment would prevent the disadvantage. On this aspect we accept Miss Fatima’s submission that the Employment Tribunal, at paras. 50 and 51, has failed to answer the Romec question, which I there articulated at para. 39.’
Judges:
HHJ Peter Clark
Citations:
[2008] UKEAT 0522 – 07 – 2204
Links:
Cited by:
Cited – Cumbria Probation Board v Collingwood EAT 28-May-2008
EAT DISABILITY DISCRIMINATION
Disability / Disability related discrimination / Reasonable adjustments
JURISDICTIONAL POINTS
>2002 Act and pre-action requirements
The date of disability is . .
Lists of cited by and citing cases may be incomplete.
Employment
Updated: 14 July 2022; Ref: scu.267038