EAT The appellant who was disabled was dismissed after a long absence from work. He made various claims under the Disability Discrimination Act 1995, all of which were rejected. He contended that the failure to make an assessment of a disabled employee was a failure to make a reasonable adjustment and that Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 was wrongly decided, alternatively ought to be distinguished on the facts. The EAT followed Tarbuck and held that it could not be distinguished.
The employers cross appealed on the grounds that the Employment Tribunal had erred in law in the way that it determined whether or not the employee was disabled. The EAT held that the Tribunal’s approach did betray an error but that their findings of fact led to the inevitable conclusion that the employee was disabled within the meaning of the Disability Discrimination Act at the material time, which in the context of the appeal was the date of dismissal.
The court considered the effect of an improvement of a claimant’s condition when considering a disability discrimination claim. Elias J said: ‘We recognise that in practice it may be difficult for a tribunal to disregard evidence which shows how the medical position did in fact progress. But it is important that they should do so. Logically, subsequent events cannot be material. If an employer dismisses someone who has a disability likely to last 12 months it cannot alter the position if the employee shortly thereafter makes an unexpected recovery before the 12 months has elapsed; similarly, an employee who was not disabled when the alleged unlawful conduct occurred cannot retrospectively be found to have been disabled at that time because he takes an unexpected turn for the worse. If, contrary to our view, subsequent evidence has any materiality at all, it can only be to confirm or reinforce a conclusion about disability which the tribunal has already reached by relying on the evidence which would have been available at the relevant date.’ and ‘The issue . . is whether the necessary reasonable adjustment has been made; whether it is by luck or judgment is immaterial.’
Judges:
The Honourable Mr Justice Elias (President)
Citations:
[2007] UKEAT 0617 – 06 – 2704, UKEAT/0617/06
Links:
Statutes:
Disability Discrimination Act 1995
Jurisdiction:
England and Wales
Citing:
Cited – Mid-Staffordshire General Hospitals NHS Trust v Cambridge EAT 4-Mar-2003
EAT The claimant had presented claims of sex and disability discrimination and victimisation. She suffered injury to her throat when builders demolished a wall near her workstation.
Held: The employer’s . .
Cited by:
Cited – Richmond Adult Community College v McDougall CA 17-Jan-2008
The claimant had been offered and had accepted a job subject to satisfactory health clearance. When that was not received her offer was withdrawn. She had suffered a condition which would affect her daily activities, but had recovered from that . .
Cited – Matuszowicz v Kingston Upon Hull City Council CA 10-Feb-2009
The appellant was employed as a teacher. He became disabled on losing part of his arm. He had been located at a prison and was unable to manage the heavy doors. He complained that the respondent had not made reasonable adjustments by transferring . .
Lists of cited by and citing cases may be incomplete.
Employment, Discrimination
Updated: 17 June 2022; Ref: scu.251592