London Underground Ltd v Vuoto

An employment tribunal may find disability-related discrimination where the employer’s reasons for dismissal include disability-related assumptions, restrictions or absences, notwithstanding evidence that a non-disabled comparator might have been treated similarly. The tribunal must assess the whole evidential picture and may apply the burden of proof provisions without treating the decision-maker’s denial as determinative.

The duty to make reasonable adjustments is assessed objectively and may require changes to working hours, duties, absence expectations or redeployment procedures. A lack of a definite return date does not create a general rule excluding that duty. Where dismissal follows a failure to make adjustments, the statutory grievance procedures do not apply to a related free-standing adjustments claim. Step 2 of the statutory dismissal procedure requires the employer to provide specific information about the basis for the proposed dismissal.

London Underground appealed against the London Central Employment Tribunal’s decision upholding Mr Vuoto’s claims of unfair dismissal and disability-related discrimination under section 3A(1) of the Disability Discrimination Act 1995. Mr Vuoto cross-appealed against the dismissal of his free-standing reasonable-adjustments claim under sections 3A(2) and 4A, and against the tribunal’s conclusion that the statutory dismissal procedure had been complied with.

The tribunal found that Mr Vuoto’s multiple sclerosis, work-related stress and absence were connected; that London Underground had failed properly to consider reasonable adjustments; and that dismissal was not justified or fair. The central issues were whether those conclusions involved errors of law, whether the absence of a grievance barred the adjustments claim, and whether the employer had complied with Step 2 of the statutory procedure.

1. Respondent’s appeal dismissed. The tribunal was entitled, on its findings, to uphold the claims of disability-related discrimination and unfair dismissal.
2. For disability-related discrimination, the tribunal correctly identified the reason for dismissal, the non-disabled comparator and the burden of proof. It was entitled to consider all matters relied on by the dismissing officer, including references to medical conditions, mobility restrictions, medication, absence levels and the sustainability of a return to work. The officer’s equivocal evidence that he might have acted similarly towards a non-disabled person was not determinative.
3. The tribunal had adequately considered the employer’s explanation. Its reasons were brief at the final stage, but the explanation had already been examined in detail when deciding whether a prima facie case had been established. No error of law arose.
4. The tribunal was entitled to find that reasonable adjustments could have included restoring fixed hours, permitting a trial of working arrangements, tolerating the sustainable absence level identified by occupational health, allowing further redeployment and modifying redeployment so that competitive interviews were unnecessary. The assessment under section 4A was objective and fact-sensitive. The existence of a two-month sick note and the absence of a definite return date did not prevent consideration of adjustments, particularly where the employer’s own occupational-health evidence indicated that a return could be sustained.
5. The adjustments were not merely historical. In an ill-health capability process, the process leading to dismissal may itself form part of the dismissal. The tribunal was entitled to conclude that the adjustments would probably have reduced work-related stress, improved attendance and avoided dismissal.
6. The tribunal was entitled to find that the dismissal was outside the range of reasonable responses under section 98(4) of the Employment Rights Act 1996, and that the claimant had not contributed to his dismissal. Its conclusion that no Polkey deduction was appropriate was also open to it.
7. Cross-appeal allowed. Following Maley, the statutory grievance procedures did not apply where the complaint was dismissal following a failure to make reasonable adjustments and no separate compensation claim arose from the adjustments themselves. The tribunal’s contrary conclusion on sections 3A(2) and 4A was substituted with a decision for the claimant.
8. The tribunal erred in relation to Step 2 of the statutory dismissal procedure. General knowledge of the issues was insufficient. The employer had to provide specific information, orally or in writing, about the matters then being considered as the basis for dismissal and give a reasonable opportunity to respond. That issue was remitted for further findings and determination.

• Employment Appeal Tribunal: dismissed London Underground’s appeal against the tribunal’s findings of disability-related discrimination and unfair dismissal; allowed Mr Vuoto’s cross-appeal on the reasonable-adjustments grievance point and substituted judgment in his favour; allowed the cross-appeal on Step 2 compliance and remitted that issue for further findings.
• London Central Employment Tribunal: upheld claims of unfair dismissal and disability-related discrimination, but dismissed the free-standing reasonable-adjustments claim and found compliance with the statutory dismissal procedure.