Newham Sixth Form College v Sanders UKEAT/0610/12/SM

Subjects: Failure to make reasonable adjustments – Steps in Environment Agency v Rowan

C, who suffered from a depressive illness, brought claims for disability-related discrimination and failure to make reasonable adjustments under the Disability Discrimination Act 1995. The ET dismissed C's disability-related claim but allowed the failure to make reasonable adjustments claim. He gave directions for a remedies hearing. R appealed. C failed to comply with orders of the EAT and was consequentially debarred from participating in the appeal.

Facts

C failed her probationary period. She alleged that R had failed to make reasonable adjustments and that her dismissal was discriminatory, in that R had dismissed her on the grounds of disability. R conceded that C suffered from a depressive illness that amounted to a disability. C contended that the PCPs which placed C at a substantial disadvantage were: (a) the requirement to attend work regularly at 8.45am and (b) the requirement to follow R's absence/lateness reporting procedures, namely to telephone R in the event of potential lateness or absence.

The ET’s judgment that made no reference to the test under s 4A of the Disability Discrimination Act 1995. Instead the ET went through each of C's suggested adjustments and found that R was under a duty to make adjustments and had failed make all but two adjustments.

Held

The EAT (HHJ McMullen QC) found that the ET’s judgment was fatally flawed and should be set aside. He cited with approval Royal Bank of Scotland v Ashton [2011] ICR 632 and Tarbuck v Sainsbury’s Supermarkets Limited [2006] IRLR 664, which states that the test for whether a reasonable adjustment has been made is objective and that it is irrelevant to consider the employer's thought processes. The EAT referred to the well known principles in Environment Agency v Rowan [2008] ICR 218. In Rowan HHJ Serota QC set out four steps that an ET would have to consider in order to come to a conclusion on a reasonable adjustments case. HHJ McMullen held that in this case the ET had not paid attention to the statutory test nor its interpretation by the authorities. The ET had wrongly taken into account subjective intentions of R. Furthermore, the ET had not made a factual finding about what R's knowledge of C's condition was. The ET had also failed to determine what substantial disadvantage C had suffered or how the disadvantage could have been prevented by the suggested reasonable adjustments. The EAT remitted the reasonable adjustments claims and the consequential remedies judgment to be reconsidered by a freshly constituted Tribunal.

Comment

This Judgment, although not providing much useful law, is a helpful authority to produce to a tribunal as a reminder of the correct approach that should be taken to useful overview of the law on failure to make reasonable adjustments claims. This case adds to the considerable number of successful disability and discrimination appeals that cite both Tarbuck and Rowan.