Secretary of State for Work and Pensions (Job Centre Plus) & Ors v Wilson

An employment tribunal deciding whether an employer failed to make reasonable adjustments must identify the relevant provision, criterion or practice, any relevant physical feature, the disadvantage suffered by the disabled employee, and the proposed adjustment. It must then apply Disability Discrimination Act 1995, section 18B, including the extent to which the adjustment would prevent the disadvantage and whether it was practicable.

An adjustment cannot be reasonable where it would not enable the employee to return to work, because no suitable work exists or the proposed arrangement is not feasible. The tribunal must make clear findings on each material adjustment advanced by the employer.

The respondent, a disabled employee affected by agoraphobia and panic attacks, worked in an office near her home. When that office was due to close, she sought to work from home and declined alternative proposals, including transport and personal support.

The Employment Tribunal found that the employer had failed to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995, principally because of delay and inadequate consideration of home working. The employer appealed, arguing that the tribunal had failed to apply section 18B and had not made findings about the feasibility of home working or the proposed alternatives.

1. Appeal allowed. The Employment Tribunal’s conclusions on grounds 1, 2 and 3 were legally defective.
2. Under section 18B of the Disability Discrimination Act 1995, the tribunal had to consider, in particular, whether each proposed step would prevent the disadvantage and whether it was practicable. The tribunal did not properly apply those factors.
3. The tribunal failed to make a clear finding on the feasibility of home working. The evidence showed that no suitable home-working vacancy existed, that the claimant’s former work had ceased, and that creating a home-based role was not practicable because the available work involved public contact, confidential records, supervision and operational difficulties.
4. The tribunal also dealt only cursorily with the employer’s alternative proposals, including transport, accompaniment, a support worker and introduction to a new workplace. It did not determine whether those steps would prevent the disadvantage and were reasonable in the circumstances.
5. The finding that no consideration had been given to work at a higher level was contrary to undisputed evidence that higher-grade roles had been considered. The tribunal’s speculation that earlier proposals might have produced greater co-operation was not an error of law.
6. An objection concerning the legal personality and liability of one respondent could not be raised for the first time on appeal: Jones v Governing Body of the Burdett Coutts School was applied.
7. No remittal was necessary. The EAT substituted its decision that the adjustments offered were reasonable and that home working was not a reasonable adjustment. The claim was dismissed.

• Employment Appeal Tribunal: allowed the appeal from the Employment Tribunal’s liability decision and substituted a decision dismissing the claim.
• Employment Tribunal: found that the employer had failed to make reasonable adjustments under section 4A of the Disability Discrimination Act 1995.