EAT DISABILITY DISCRIMINATION – Section 15
DISABILITY DISCRIMINATION – Reasonable adjustments
UNFAIR DISMISSAL -Reasonableness of dismissal
Disability discrimination – discrimination by means of unfavourable treatment because of something arising in consequence of disability – section 15 Equality Act 2010
Disability discrimination – discrimination by means of a failure to comply with a duty to make reasonable adjustments – sections 20 and 21 Equality Act 2010
Unfair dismissal – fairness of a dismissal for a reason related to capability – section 98(4) Employment Rights Act 1996
The Claimant had been employed by the Respondent since 2000 but had taken long periods of time off work due to ill-health and was dismissed on 6 January 2015 because she had been absent since 31 July 2014 and there was no clear indication as to when she might return. On the Claimant’s claims of disability discrimination and unfair dismissal, the ET found that the Claimant’s absence was connected with her disability (PTSD arising from events outside her employment but which caused her to suffer stress and anxiety at work); she had, however, not been dismissed because she was disabled (so her claim of direct disability discrimination failed) but because of her absences from work. The ET went on to uphold the Claimant’s complaints under section 15 and sections 20 and 21 of the Equality Act 2010 (‘EqA’), finding that the Respondent had not done enough to comply with its obligations under the EqA or under its own procedures. The ET further found the dismissal to have been unfair. The Respondent appealed.
Held: allowing the appeal in part
When considering the Claimant’s complaint under section 15 EqA, the ET had failed to clearly explain its findings as to the reason for the treatment complained of and whether that was connected to her disability (see Pnaiser v NHS England and Anor [2016] IRLR 170 EAT). That said, reading the Judgment as a whole, the answer to those questions could be gleaned from the ET’s earlier findings, in particular under the claim of direct discrimination. A similarly benign reading of the ET’s consideration of justification for the purposes of section 15(1)(b) EqA was, however, not possible. The reasoning did not demonstrate the requisite objective balance between the discriminatory effect and the reasonable needs of the employer (see Land Registry v Houghton UKEAT/0149/14 and Hensman v MoD UKEAT/0067/14), and some of the findings were inconsistent; the appeal would be allowed on the question of justification for the purposes of section 15 EqA.
As for the ET’s Judgment on the Claimant’s reasonable adjustments claim, its reasoning was not to be read as including a finding that the Respondent had failed to make a reasonable adjustment by failing to carry out further investigation or enquiry (insufficient to found a breach of section 20 EqA, see Tarbuck v Sainsbury’s Supermarkets Ltd UKEAT/0136/06); its decision came down to a finding that the Respondent had failed in its duty to make reasonable adjustments in not deferring dismissal until the Claimant had completed her therapy or drawn a provisional conclusion from it. It was not apparent, however, that the ET had properly assessed the question of reasonableness in this regard – an exercise requiring an objective assessment, including asking what difference the adjustment would have made (Griffiths v SoS for Work and Pensions [2017] ICR 160 CA applied), although it was not necessary that the adjustment would inevitably have removed the disadvantage (Noor v Foreign and Commonwealth Office [2011] ICR 695 EAT). The appeal would also be allowed in this respect.
Although required to apply a differently worded test on the unfair dismissal claim (and see Hardy and Hansons plc v Lax [2005] ICR 1565 CA), similar considerations arose to those relevant to the justification defence under section 15 EqA (O’Brien v Bolton St Catherine’s Academy [2017] EWCA Civ 145 applied). In the present case, the ET’s conclusion on unfair dismissal was flawed by its apparent failure to have regard to the relevant factors relating to the impact of the Claimant’s continued absence on the Respondent, a not dissimilar failure to that identified in respect of the EqA claims; the appeal would also be allowed in this respect.
Judges:
Eady QC HHJ
Citations:
[2017] UKEAT 0182 – 16 – 0206
Links:
Jurisdiction:
England and Wales
Employment
Updated: 27 March 2022; Ref: scu.590423
