Johnson v Mitie Asset Management Ltd: EAT 18 Jul 2014

EAT Victimisation Discrimination : Protected Disclosure – DISABILITY DISCRIMINATION
PROTECTED DISCLOSURE – section 43B Employment Rights Act 1996
Inadequate findings of fact by the ET as to what had actually been said by the Claimant and, if not a protected disclosure, why. Ultimately, however, the ET’s clear findings of fact as to the reason for the Claimant’s dismissal (redundancy arising from a genuine restructuring) meant that the only permissible conclusion was that there was no causative link between any protected disclosure and the decision to dismiss.
Disability – section 6(1) and Schedule 1 Equality Act 2010
ET failed to consider the deduced effect of the Claimant’s impairment and had apparently failed to have proper regard to the medical evidence. The conclusion that the Claimant was not a disabled person for the purposes of the 2010 Act was unsafe. Nevertheless, the question remained as to whether any of his claims of discrimination in this respect were made out.
Discrimination arising in consequence of disability – section 15 EqA 2010
The ET failed to address this claim, albeit that it had apparently recognised that it remained a ‘live’ complaint at the Hearing. That said, the substantive answer to the claim of discrimination arising in consequence of disability was apparent from reading the Tribunal’s Judgment in its entirety: it was not the Claimant’s disability that led to his failure to engage but his view that the head of finance role was his job, that the redundancy was a sham and his decision not to engage after the failure to agree terms of payment under a compromise agreement. The detriments relied on, therefore, did not arise as a consequence of the Claimant’s disability.
Reasonable adjustments – section EqA 2010
The ET failed to adopt the structured approach endorsed in (e.g.) Smiths Detection – Watford Ltd v Berriman UKEAT/0712/04 and Secretary of State for Work and Pensions (Jobcentre Plus) and Ors v Wilson UKEAT/0289/09. Of the two reasonable adjustments identified by the Claimant, however, one was simply not relevant (relating to the location of grievance meetings; not pursued on appeal) and the ET expressly addressed the second (the need to delay the redundancy process pending the Claimant’s recovery), finding that ‘We do not accept that the process should have been delayed indefinitely until the Claimant had recovered.’
The Claimant may not have expressed the required adjustment as an indefinite delay but that was the reality of his position and the Tribunal was entitled to reach the conclusion it did.
Unfair dismissal – s 98 ERA
Given the conclusions reached on the Protected Disclosures and Disability Discrimination claims, the grounds of appeal in respect of the unfair dismissal case largely fell away. The additional (stand-alone) point as to what was said to be a perverse finding as to the Claimant’s qualification did not fairly reflect the ET’s findings.
Appeal dismissed.

[2014] UKEAT 0046 – 14 – 1807
Equality Act 2010, Employment Rights Act 1996 43B
England and Wales

Employment, Discrimination

Updated: 21 December 2021; Ref: scu.536687