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This case was an appeal against an employment tribunal’s finding of disability discrimination (reasonable adjustments) and disability related discrimination (dismissal). The EAT in upholding the ET's findings found that both instances of discrimination were inextricably linked and that the employment tribunal's not having considered the Malcolm comparator was irrelevant in the light of the employer's failure to consider adjustments.

The Respondent had argued that the ET erred in finding for disability-related discrimination and less favourable treatment in the absence of considering a comparator (in the wake of London Borough of Lewisham v Malcolm [2008]) and in rejecting the section 98(A)(2) 'Polkey' employer's defence to failings of procedure. The employer also tried unsuccessfully to argue that it was perverse to find that its conduct was outside the 'range of reasonable responses' of an employer when dismissing an employee.

The claimant had been lecturer in computing who developed a number of illneses resulting in periods of sickness absence. The claimant always expressed a wish to return to her job albeit on reduced hours once she recovered from her illness.

Other IT roles within the college could have been offered to the claimant but she was not consulted about these.

The Claimant was invited to a meeting with the Principal where she was informed about her possible dismissal. At the same time steps were in process for recruiting new staff, and a temporary lecturer was recruited. Before the Claimant was dismissed the new lecturer was offered a year’s contract.

Being informed that the claimant had a new illness of fibromyalgia the Prinicipal demonstrated disinterest in the illness or in finding alternative work for the claimant or in extending the review period.

When the claimant was dismissed she made the following unfair dismissal and disability discrimination claims:

“1 Unlawful disability discrimination prior to dismissal by the Respondent, refusing a phased return to work (failure to make reasonable adjustments).

2. Disability-related discrimination pursuant to section 3(A)(1) Disability Act 1995 by the dismissal of the Claimant by the Respondent.”

The ET followed the EAT guidance in Agency v Rowan [2008] when listing the issues needing determination in relation to the failure to make reasonable adjustments claim:

“ Did the Respondent refuse a phased return to work for the Claimant?
If so, did that refusal amount to a provision criterion or practice?
If so, did it place the Claimant at a substantial disadvantage in comparison with non-disabled persons?
If so, did the Respondent have the required knowledge about the Claimant as a disabled person?
If so, did the Respondent take such steps as it was reasonable to take in all the circumstances in order to prevent the provision criterion or practice having that disadvantageous effect? (Section 18B of the 1995 Act)”

Regarding the dismissal:
“ For a reason which related to the Claimant’s disability, has the Respondent treated the Claimant less favourably than the Respondent treats (or would treat) others to whom that reason does not (or would not) apply?
If so, has the Respondent shown that the reason for the treatment is both material to the circumstances of the case and substantial?
If so, does the treatment amount to direct discrimination?
If so, is the Respondent under a duty to make reasonable adjustments?
If so, has the Respondent failed to comply with that duty?”
The Tribunal decided that the claimant needed a phased return to work and that “the refusal must have amounted to a discriminatory "provision, criterion or practice", and that it placed her at a substantial disadvantage in comparison with non-disabled persons.”

The Tribunal found that the procedure specified for all those returning from sick leave was followed. The employer should however had adapted its return to work procedures for a disabled worker as the statutory burden on the employer is greater with the DDA.

The employer argued that seeking other work for the claimant was not realistic as the claimant was in any case not interested in redeploying to another role even though such a redeployment was possible No concrete proposals had however been proposed by the employer. The claimant had not been given any serious proposal as to working elsewhere and because of this the ET found that the Respondent failed to give adequate consideration to assigning the Claimant to other work.

The Respondent also argued that managing part-time staff was difficult but there were part-time staff already working at the college and no evidence was given why the claimant could not also work part-time. One argument given that the burden on other staff would increase if they accommodated a disabled colleague was not convincing with regard to the DDA.

The Tribunal noted that whilst considering the claimant's return to work a new lecturer “ whose role would, at least in part, be to replace the Claimant” had been recruited. This gainsayed the college's assertion that making adjustments such as allowing the claimant not to work evenings would create problems as to covering the hours she could not work. The cover for the claimant was already available in the the new tutor had been hired.

New information about a diagnosis of fibromyalgia did not lead to investigation of the claimant's need even though the the employer has the onus to consider what adjustments need to be made.
The employer's not considering reasonable adjustments led the ET and later the EAT to conclude that the employer was in breach of Section 4A of the DDA 1995.

The Claimant was dismissed owing to the employer's reluctance to considering making adjustments. The ET considered this less favourable treatment which was entwined with the decision to dismiss. The ET decided that respondent discriminated against the claimant in breach of Section 3A of the DDA when it dismissed her.

The EAT quoting the case of Archibald v Fife did not accept the respondent's criticism of a lack of a comparator in the disability discrimination reasonable adjustments complaint. The EAT considered that had the claimant needed to argue that someone who did not have a disability but whose circumstances were otherwise the same as hers would have been treated differently, this would “defeat the purpose of the Disability Discrimination legislation”.

1.The "provision, criterion or practice was the refusal to allow the claimant a phased return to work. If she wished to return to work this would have to be without adjustments. The EAT found that the “comparator group is other employees of the Respondent who are not disabled and who are able forthwith to attend work and to carry out the essential tasks required of them in their post. Members of that group are not liable to be dismissed on grounds of disability, whereas because of her disability the Claimant could not do her job, could not comply with that criterion and was liable to dismissal.”

The House of Lords case of London Borough of Lewisham v Malcolm [2008] was not considered as it took place after the ET hearing. However the EAT decided that in this case it could in any case be disregarded as this was a case where it is 'impossible to disentangle the failure to make reasonable adjustments from the decision to dismiss' and that the dismissal in the wake of a failure to make reasonable adjustments under section 4A was itself an unlawful act of disability discrimination.

The unlawful failure to make reasonable adjustments meant that not finding a comparator according to London Borough of Lewisham v Malcolm was of no consequence.

The tribunal saw that under section 98 Employment Rights Act 1996 where a claimant 'was on long-term sick leave and unable at the time of dismissal to carry out the job she was employed to perform' a possibility existed whereby a dismissal could be within 'the band of reasonable responses', a potentially a fair reason even when the dismissal was discriminatory. The ET did not find the dismissal fair in this case however as the employer was large with enough resources to carry out its procedures, investigations, and decisions fairly.

A comparison with the British Home Stores v Burchell (1978) case was brought whereby an investigation into the facts must be conducted as regards the nature and prognosis of medical conditions and how a dismissal could be avoided. It was therefore understood that a reasonable employer would not have considered a dismissal as being within the band of reasonable responses.

As to the respondent's Polkey point that a reduction analogous to a Polkey reduction ought to have been considered the EAT rejected this by quoting the ET's comment that the respondent 'had not itself argued that there was a percentage chance of the Claimant being fairly dismissed.'

The transcript of this case can be found  Here