Conway v Community Options Ltd UKEAT/0417/11
Subjects: Reasonable Adjustments – Strike Out – Effectiveness of adjustment
C brought proceedings for unfair dismissal and disability discrimination. The ET struck out the claims on the grounds that they had no reasonable prospect of success pursuant to rule 18(2)(d) of the ET rules of procedure. C appealed to the EAT.
C had anxiety and depression and was absent from work for 15 months. R obtained medical advice about his condition, prognosis and likely return to work and consulted with him about the content of the report. The medical evidence was that C's condition had deteriorated, that the timescales for his return to work were difficult to predict, and that a return to work in the near to medium term was unlikely. C was also pessimistic about a return to work. R dismissed C on ill-health capability grounds. C made a claim for unfair dismissal and disability discrimination. The ET struck out his claims on the grounds that since the medical evidence stated that C was unfit to return to work and there were no adjustments that could be made which would enable him to return his claims had no reasonable prospect of success.
His Honour Judge Clark in the EAT dismissed the appeal. C's case was that adjustments should have been to enable him to return to work. On the unchallenged medical opinion evidence before the Respondents there were no adjustments that could have been made to enable C to return. HHJ Clark also held that the Tribunal was also entitled to find that the unfair dismissal claim had no reasonable prospects of success. C had been provided with the medical reports. C did not disagree with them, did not produce his own medical evidence and was pessimistic about his prospects of returning to work.
This case is a helpful reminder that employers can taken steps to bring litigation to an early close. Although HHJ Clark describes this as one of those ‘rare’ cases where the facts were not materially in dispute it is not uncommon for the Respondent's medical evidence to be unchallenged but still proceed through to a full hearing. This strict approach to the statutory duty can be applied to other parts of the statutory test. For instance an employer can rely on a medical opinion to defend a reasonable adjustments claim on the basis that he did not know that the employee was suffering a disadvantage as a result of its working arrangements (EA 2010, Sch.8, Part 3, 5.20 and Jones v Post Office  IRLR 384). Even if the medical advice is disputed, an employer could use it to argue that he was unaware of the disadvantage and that therefore no duty arose. Applying this strict approach an application to strike out could be made based on the knowledge defence.
Where the medical prognosis for an employee is uncertain or unfavourable this case suggests that the Respondent should at least consider an application to strike out those claims.
The full transcript can be found here: http://www.bailii.org/uk/cases/UKEAT/2012/0034_12_0607.html