Nottingham City Transport Ltd v Harvey: EAT 5 Oct 2012

EAT Disability Discrimination: Reasonable Adjustments – Employee unfairly dismissed, because the employer did not conduct a reasonable investigation nor consider mitigating circumstances when disciplining a disabled employee. It also considered a claim for failure to make reasonable adjustments where the employee had a disability. It thought the PCP (provision, criterion or practice) was the application of the employer’s disciplinary procedures, which would reasonably have been adjusted by investigating reasonably and considering personal mitigation arising out of disability, and not dismissing him. It was conceded on his behalf that there was no evidence before the ET that the employer’s practice was to ignore mitigation or to fail to carry out a reasonable investigation. The ET erred in identifying as a ‘practice’ that which was not, and in failing to address the questions in Rowan.
Appeal allowed. The matter was remitted because the employee had put forward possible PCPs that the ET had not resolved, given its (erroneous) view that the application of a flawed disciplinary procedure on the one occasion relating to the Claimant could qualify: the ET needed to resolve whether they did give rise to liability.
Langstaff J said: ‘It is not sufficient merely to identify that an employee has been disadvantaged, in the sense of badly treated, and to conclude that if he had not been disabled, he would not have suffered; that would be to leave out of account the requirement to identify a PCP. Section 4A (1) provides that there must be a causative link between the PCP and the disadvantage. The substantial disadvantage must arise out of the PCP.’
Langstaff P J
[2012] UKEAT 0032 – 12 – 0510, [2013] Eq LR 4
Bailii
England and Wales
Cited by:
CitedFirstgroup Plc v Paulley CA 8-Dec-2014
firstgroup_paulleyCA2014
The claimant a wheelchair user had been unable to travel on a bus when a mother had left her sleeping child in a pushchair. The mother said she was unable to fold down the pushchair, and would not move the child. The claimant said that the driver . .

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Updated: 23 April 2021; Ref: scu.466339