EAT Disability Discrimination: Detriment – DISABILITY DISCRIMINATION – Reasonable adjustments
DISABILITY DISCRIMINATION – Section 15
Disability discrimination – ‘detriment’ – failure to make reasonable adjustments (sections 20 and 21 Equality Act 2010) – discrimination arising from the consequences of disability (section 15 Equality Act).
The ET had found for the Claimant on her claims of detriment short of dismissal by reason of the Respondent’s failure to make reasonable adjustments to find a position for the Claimant on the ground floor of its warehouse in an earlier relocation exercise. Although vacancies existed, the Respondent had given priority to longer serving employees and had failed to make a reasonable adjustment for the Claimant in this regard. In identifying the detriment suffered by the Claimant, however, the ET had appeared to limit its finding to her pecuniary losses. It had, further, rejected the Claimant’s case in respect of possible alternative positions at a later date and as to whether her dismissal had constituted an act of discrimination.
The Claimant appealed on three grounds: (1) the ET’s finding on detriment was unnecessarily limited – ‘detriment’ is a broad concept and can include physical discomfort or disadvantage as well as economic disadvantage (Ministry of Defence v Jeremiah [1979] 3 All ER 833); (2) the ET failed to determine part of the reasonable adjustments claim, specifically that during the period September 2012 to August 2013 redeployment into a specific pre-retail vacancy would have been a reasonable adjustment; (3) the ET also failed to address the Claimant’s claim that her dismissal had amounted to unfavourable treatment arising in consequence of her disability under section 15 Equality Act.
At an earlier Appellant-only Preliminary Hearing before HHJ Richardson, the appeal had been permitted to proceed subject to a request for further explanation from the ET under the Burns/Barke procedure.
Having received the ET’s response and upon the Respondent having thereafter taken a neutral position (at least so far as the first ground of appeal was concerned), allowing the appeal:
(1) Given the ET’s response on the question of ‘detriment’, it was apparent it had not intended to limit its findings to pecuniary losses (as appeared to be suggested at paragraph 82 of its Reasons) but had also found it included exacerbation of the Claimant’s asthma. That being so, any limitation to the Judgment on detriment at paragraph 82 should be set aside and substituted with a ruling that the detriment found included those matters identified by the ET at paragraphs 79, 80 and 82 of its Reasons.
(2) It was apparent from the Claimant’s submissions before the ET that she had relied on a specific vacancy apparently arising in March 2013, but the Reasons did not refer to this, and the ET had not rectified this on the Burns/Barke reference. Failing to address the Claimant’s case in this respect amounted to an error of law (Greenwood v NWF Retail Ltd [2011] ICR 896), and the ET’s rejection of that case could not (as the Respondent suggested) be inferred from the other, more general findings. That said, it could not be said there was only one answer to the point (there was insufficient information for that); this would need to be remitted to the ET for reconsideration.
(3) The ET had also failed to address the Claimant’s claim that her dismissal had amounted to unfavourable treatment arising in consequence of her disability under section 15 Equality Act. The closest the ET came to engaging with this claim was at paragraph 92 of its Reasons, but that addressed this as a potential detriment and failed to consider it as a separate head of claim under section 39(2) Equality Act. As dismissal was due to the Claimant’s ability to carry out her role on the top floor, the question was whether it was a proportionate means of achieving a legitimate aim. Although the burden of proof was on the Respondent, it was not possible to say that there was no basis for finding justification in this case (see the Respondent’s submissions before the ET at paragraph 6.1 and the ET’s findings more generally in respect of the other claims relating to dismissal). The ET needed to carry out the assessment identified by the Claimant’s counsel at paragraph 7.4; this point would also be remitted to it for consideration.
Eady QC HHJ
[2016] UKEAT 0156 – 15 – 1801
Bailii
Equality Act 2010 15 20 21
England and Wales
Employment, Discrimination
Updated: 01 November 2021; Ref: scu.562521
