NTL Group Ltd v Difolco

Under section 6(1) of the Disability Discrimination Act 1995, the duty to take reasonable steps arises only after the claimant establishes that identified employer arrangements place the disabled person at a substantial disadvantage compared with non-disabled persons. An employment tribunal must identify those arrangements and give clear reasons linking them to the disadvantage. An appellate tribunal cannot fill a material reasoning gap by inference or recast the tribunal’s decision as determining an unarticulated case. Distinct claims based on disability-related dismissal and on the terms or selection process for alternative employment must be kept separate. The appeal was allowed and the issue remitted.

The respondent employee, who became disabled after starting employment, returned to work part-time and was later selected for redundancy. The Employment Tribunal found unfair dismissal and disability discrimination, including discrimination concerning a possible full-time Teesside post. The Employment Appeal Tribunal allowed the employer’s appeal on most issues but upheld the finding concerning the Teesside job. The employer appealed to the Court of Appeal, arguing that the Employment Tribunal had failed to identify the relevant arrangements and had made no proper finding of substantial disadvantage under section 6(1) of the Disability Discrimination Act 1995. The central issue was whether the tribunal’s reasons provided a lawful basis for the duty to make reasonable adjustments.

The Court of Appeal unanimously allowed the appeal, reversed the Employment Appeal Tribunal’s decision on the Teesside job issue and remitted that issue to the Employment Tribunal with the other matters already remitted.

1. Statutory threshold. Section 6(1) of the Disability Discrimination Act 1995 makes substantial disadvantage caused by arrangements made by the employer a necessary precondition to the duty to take reasonable steps. The Employment Tribunal had made no express finding of substantial disadvantage in relation to the Teesside job.
2. Identification of arrangements. The tribunal had not identified whether the relevant arrangements were the competitive selection process, the full-time nature of the post, the absence of an unequivocal part-time offer, or some combination. The relevant arrangements must be identified before substantial disadvantage can be assessed. Where they are unclear, an appellate tribunal cannot supply the missing reasoning by inference from the evidence.
3. Reasoned and properly identified cases. An employment tribunal need not produce elaborate or formalistic legal reasoning, as explained in Meek v City of Birmingham District Council [1987] IRLR 250. It must, however, give clear reasoning. The originating application need not be drafted like a High Court pleading, but the allegations must be identified sufficiently for the respondent to understand the case to be answered. A materially different case cannot be created for the first time on appeal.
4. Alternative claims. Archibald v Fife Council [2004] UK H 32 concerned a different situation in which disability prevented the employee meeting the requirements of the existing job, and the relevant arrangements and disadvantage were clear. Any Archibald redeployment case depended on establishing a disability-related reason for dismissal. It was distinct from the proposed freestanding claim concerning the Teesside post and competitive selection.
5. Other observations. The court accepted that substantial disadvantage need not result from prior discrimination by the employer, but the identified arrangements must still causally produce the disadvantage. It also considered that an employer may not ordinarily be required to adjust a role for a potential candidate before that person has applied, but did not finally determine that point.

• Court of Appeal (Civil Division) allowed the employer’s appeal and remitted the Teesside job issue to the Employment Tribunal.
• Employment Appeal Tribunal on 27 January 2006 allowed the employer’s appeal on most issues but dismissed it concerning the Teesside job.
• Employment Tribunal, Teesside on 24 November 2004 found unfair dismissal and discrimination on disability and part-time-worker grounds.