EAT Disability Discrimination: Reasonable Adjustments – JURISDICTIONAL POINTS – Claim in time and effective date of termination – JURISDICTIONAL POINTS – Extension of time: just and equitable – UNFAIR DISMISSAL – Constructive dismissal – PRACTICE AND PROCEDURE – Costs
Disability Discrimination – failure to comply with an obligation to make reasonable adjustments (section 21 Equality Act 2010)
The Employment Tribunal had not confused its findings under this claim with those relevant to the direct discrimination/discrimination arising from disability claims (both of which it found were presented out of time). It had found (as was effectively conceded on the Respondent’s evidence and findings from the grievance process) that the adjustments higher management intended should be made had been imperfectly implemented in the workshop. That failure of implementation was not limited to the comments made to the Claimant but included the allocation of work. That was a finding open to the Employment Tribunal on the evidence and justified the conclusion reached.
Time limit
That said, the Employment Tribunal’s findings as to the breach of the reasonable adjustments obligation raised a question as to whether it had properly considered the application of the time limit in this regard. Although it had apparently found that the duty continued and was still live as at the date of the termination of the Claimant’s employment, it had found that, after 6 September 2012, the Respondent ‘had a will to deal with reasonable adjustments that was practicable’, suggesting that it had not found there to have been a continuing breach. This was a matter that should go back to the same Employment Tribunal to consider again, in the light of its findings of fact relevant to this point. Should it conclude that the claim had indeed been presented out of time it would then need to consider whether it would be just and equitable to extend time. As more than one outcome was possible on this question, this was a matter for the Employment Tribunal and it would not be for the Employment Appeal Tribunal to substitute its view.
Constructive Dismissal
Given the dismissal of the first ground of appeal (the finding of a breach of the obligation to make reasonable adjustments) the Employment Tribunal’s finding that this also breached the implied obligation to maintain trust and confidence was not undermined. In any event, the Employment Tribunal had found there were other factors which similarly breached the implied term; the comments made and the delay over the grievance appeal. The Employment Tribunal had been entitled to reach the conclusions it had, either on a ‘last straw’ basis or as part of the context in which the last act (the delay of the grievance appeal) had to be seen. The findings made in this regard were not perverse and the Employment Tribunal had not erred in law by failing to find receipt of statutory sick pay amounted to affirmation on the part of the Claimant in circumstances where he still had an outstanding grievance.
Costs
Upon the Respondent’s application for part of its costs (in terms of the fee for lodging the appeal and the hearing fee), given its partial success on the appeal: application refused.
For the most part the Respondent had been unsuccessful. What might have been seen as the two main grounds of appeal had failed. The Respondent would have incurred fees in order to pursue Grounds 1 and 3 in any event and there was no indication that it had made any approach to the Claimant as regards a possible agreement as to the outcome of Ground 2. The Employment Appeal Tribunal has a broad discretion in respect of costs and although it might generally be expected that the losing party should reimburse a successful Appellant in terms of these fees, it should not be assumed that a pro rata percentage of the fees will automatically be awarded in a case where an appeal is only partly successful.
Eady QC HHJ
[2014] UKEAT 0275 – 14 – 1711
Bailii
Equality Act 2010 21
England and Wales
Employment, Discrimination, Costs
Updated: 27 December 2021; Ref: scu.541545
