Lancashire Care NHS Foundation Trust v Reilly

An employment tribunal deciding whether an employer has made reasonable adjustments may evaluate management evidence for itself. It is not required to accept an employer’s assertion that proposed arrangements are impracticable or unsafe.

The question is one of proportionality. The tribunal must balance the disadvantage caused to the disabled employee against the difficulties caused to the employer’s organisation. An appeal alleging that the tribunal confused what was possible with what was reasonable, or challenging its factual assessment, will not succeed without an error of law or a perverse conclusion.

The Employment Tribunal found that Lancashire Care NHS Foundation Trust had failed to make reasonable adjustments for Ms Reilly, a disabled nursing assistant, after her medical suspension. It concluded that the Trust had not adequately explored redeployment, adaptation of duties, or other arrangements that might have enabled her to return to work.

The Trust appealed, alleging procedural unfairness, reliance on matters outside the pleaded case, misdirection on the statutory test, failure to balance relevant considerations, and perversity. The Employment Appeal Tribunal considered whether the tribunal had acted unfairly, misdirected itself, or reached conclusions that were legally perverse.

1. Appeal dismissed. The Employment Tribunal had not erred in law and its findings were not perverse.
2. An employment tribunal is not precluded from questioning management decisions or from rejecting management opinion. Tribunal members may evaluate the evidence and are not required to accept an employer’s explanation at face value.
3. The statutory duty to make reasonable adjustments requires a proportionality assessment. The disadvantage to the disabled employee must be balanced against any disadvantage to the employer’s organisation. The fact that an adjustment is possible does not, by itself, make it reasonable, but the Tribunal had not made that error.
4. The appeal was, in substance, a challenge to the Tribunal’s factual conclusions. Disagreement with those conclusions does not constitute perversity. The EAT declined to substitute its own view of the merits and applied the caution expressed in Piglowska v Piglowski [1999] 1 WLR 1360.
5. There was no procedural unfairness. Natural justice required sufficient notice of the nature of the allegation and a fair opportunity to answer it. The focus of a case may legitimately develop during a hearing where the evidence or argument is a refinement or extension of matters already raised.

• Employment Tribunal: By a decision promulgated on 5 May 2009, found that the Trust had unlawfully discriminated against Ms Reilly by failing to make reasonable adjustments.
• Employment Appeal Tribunal: Dismissed the Trust’s appeal.