EAT UNFAIR DISMISSAL – Reasonableness of dismissal
DISABILITY DISCRIMINATION – Reasonable adjustment
The Employment Tribunal concluded that the Respondents had been guilty of disability discrimination in three respects, in failing to allocate to her a parking space in the car park where she worked, in harassing her by an e-mail and by dismissing her ostensibly for capability reasons. The appeal was brought against all three conclusions.
As to the first conclusion, the Claimant was entitled to work flexitime hours. She chose to arrive at work, as she was entitled to do at 9.30; but the car park was, by that time, full; the Respondent’s case was that there was no PCP that she had to walk from a distant car park despite her disability; it was open to the Claimant to come to work at 9am, at which time there would be a parking space in the main park and that the ET had erred in law in their conclusion as to the PCP and that there had been a failure to make a reasonable adjustment. Held that the ET had not erred in law. It was open to them to find the PCP as they had. The Claimant had the right to cone into work at any time within the flexitime arrangements. It was not for her but for the Respondents to make reasonable adjustments; the Tribunal had considered the relevant factors and had made a decision which was open to them.
As to harassment, this was a rare case in which there was perversity; the terms of the e-mail could not reasonably be seen as falling within the definition of harassment in section 3B of the Equality Act 2010.
As to dismissal, perversity was not overwhelmingly demonstrated; but the ET had not directed themselves to the range of reasonable responses test and appeared to have substituted their own view. By agreement the discrimination finding based on the dismissal fell if the unfair dismissal finding fell.
Finding that there was no harassment substituted. Dismissal issues remitted.
Jeffrey Burke QC
[2013] UKEAT 0194 – 13 – 1810
Bailii
Equality Act 2010 3B
England and Wales
Employment, Discrimination
Updated: 25 November 2021; Ref: scu.517548
