Hay v Surrey County Council

Under the Disability Discrimination Act 1995, an employer is not required to retain an employee in duties which consistent medical evidence establishes that she cannot perform. A tribunal must engage with the full effect of relevant medical evidence. Ignoring evidence fatal to the claim may make its conclusions perverse. A separate formal risk assessment is not itself a distinct duty where assessment would add nothing to the employer’s informed decision-making. Adjustments may reallocate minor or subsidiary duties, but cannot ordinarily require double or triple staffing of the principal functions of a job or leave the employee with little meaningful work.

Sylvia Hay claimed that Surrey County Council had discriminated against her under sections 5 and 6 of the Disability Discrimination Act 1995 by failing to adjust her mobile library duties after knee surgery. She also claimed unfair dismissal after refusing redeployment to an information-services post. The Employment Tribunal upheld both claims, finding that adjustments could have enabled her to remain a mobile librarian. The Employment Appeal Tribunal set aside that decision as perverse. The Court of Appeal considered whether the Tribunal had properly assessed the medical evidence, whether the proposed adjustments were realistic, and whether the absence of a formal risk assessment justified the Tribunal’s conclusions.

The Court of Appeal unanimously dismissed the appeal and left undisturbed the Employment Appeal Tribunal’s order.

1. Buxton LJ held that the first challenge, based on the Employment Tribunal’s treatment of risk assessment, was not by itself made out. Applying the approach in Yeboah v Crofton [2002] IRLR 634, the Tribunal’s determination had to be read with reasonable assumptions in its favour. Its findings about the consequences of a risk assessment could be separated from its mistaken view that a formal assessment was fundamental.
2. The Court proceeded on the common ground that the duty under sections 5 and 6 of the Disability Discrimination Act 1995 involved a single question of compliance. A proper assessment was a means of informing the employer’s decision, not a separate and distinct duty. The Court declined to resolve the wider jurisprudence because doing so without adversarial argument would produce only obiter observations. The approach in Mid-Staffordshire NHS Trust v Cambridge [2003] IRLR 566 was treated as incorrect, while the formulation in Tarbuck v Sainsbury’s Supermarkets [2006] IRLR 664 was treated as the proper approach for this appeal.
3. The decisive error was the Employment Tribunal’s failure to engage with consistent medical evidence that Ms Hay was unfit for manual library work, including crouching, squatting and strenuous activity, and required sedentary employment. Surrey was entitled to rely on that evidence. A formal risk assessment would have added nothing. Requiring Surrey to preserve the existing role despite the medical evidence was perverse.
4. Rix LJ added that the proposed adjustments were irrational on their own terms. Section 6(3)(b) supported reallocating minor or subsidiary duties, but not double or triple staffing of the main functions of the job. The proposed vehicle alterations were vague, and the suggested exchange with Mr Collingwood required two operators capable of manual work. Moses LJ agreed that the assessment error infected the decision as a whole.
5. The unfair-dismissal finding failed on the same basis. Ms Hay’s case was confined to remaining in the mobile-library role, while the offered alternative employment was consistent with the medical advice.

1. Court of Appeal (Civil Division): dismissed the appeal and did not disturb the Employment Appeal Tribunal’s order.
2. Employment Appeal Tribunal: set aside the Employment Tribunal’s decision as perverse.
3. Employment Tribunal: upheld the disability-discrimination and unfair-dismissal claims.