Cave v Goodwin & Anor

Under section 6(1) of the Disability Discrimination Act 1995, whether workplace arrangements place a disabled employee at a substantial disadvantage compared with non-disabled persons is ordinarily a question of fact for the employment tribunal. The EAT may interfere only for an error of law, perversity or an absence of evidential foundation. The tribunal must assess the actual effect of the arrangements on the employee concerned. If no substantial disadvantage is established, the duty to consider reasonable adjustments does not arise. A failure to follow a statutory code expressly is not, by itself, an error of law where the tribunal has considered the relevant legal framework.

The claimant complained to an employment tribunal that his employers had discriminated against him under the Disability Discrimination Act 1995. He relied on the form of his suspension letter and the refusal to allow a non-employee friend to accompany him at a disciplinary hearing.

The tribunal accepted that he was disabled but dismissed the complaint, finding that the arrangements had not placed him at a substantial disadvantage. The Employment Appeal Tribunal allowed his appeal by a majority and remitted the case to a fresh tribunal. The employers appealed to the Court of Appeal, principally arguing that the EAT had substituted its own view of the facts for that of the tribunal.

1. Appeal allowed. The Court of Appeal set aside the EAT’s order and restored the employment tribunal’s decision dismissing the complaint.

2. The EAT’s jurisdiction is limited to questions of law. It cannot interfere with findings of fact where there is material capable of supporting them, no misdirection in law and no perversity. Disagreement with the merits or criticism of an employer’s conduct is not enough.

3. Whether refusing an employee’s chosen advocate placed a disabled person at a substantial disadvantage compared with non-disabled persons was a question of fact for the tribunal. The tribunal had set out section 6(1), recognised that a rule permitting only a working colleague could disadvantage a disabled employee, and then assessed the actual effect on this claimant. It was entitled to use its own observations of his communication abilities and the disciplinary hearing note.

4. The tribunal had not treated substantial disadvantage as meaning major disadvantage. Its reasoning was consistent with the Code of Practice, which described substantial disadvantages as more than minor or trivial. The absence of an express reference to paragraph 8.3 of the Code did not show that it had been overlooked. That paragraph contemplated that an employer may be in breach, leaving the issue to be determined on the facts.

5. The staged analysis described in Morse v Wiltshire County Council [1998] IRLR 352 did not require consideration of reasonable steps or justification unless the threshold duty under section 6(1) first arose. Since the tribunal found no substantial disadvantage, those later questions did not arise.

6. As to the suspension letter, even if the arrangements were open to criticism, any breach of section 6(1) was not causative of the dismissal relied on as the detriment. It therefore did not establish unlawful discrimination.

• Court of Appeal (Civil Division) allowed the employers’ appeal, set aside the EAT order and restored the employment tribunal’s decision.
• Employment Appeal Tribunal allowed the claimant’s appeal by a majority and ordered a fresh tribunal hearing.
• Employment Tribunal unanimously dismissed the disability discrimination complaint.