Secretary of State for Work and Pensions v Wakefield

An employment tribunal determining a reasonable-adjustments claim must identify the provision, criterion or practice, any relevant physical feature, the appropriate non-disabled comparator, and the nature and extent of the claimant’s substantial disadvantage. Only then can it assess which adjustments are reasonable and how they would prevent that disadvantage.

Occupational health recommendations must be analysed against the statutory requirements. A tribunal should explain how each proposed adjustment, or their cumulative effect, would alleviate the identified disadvantage and should assess the reasonable timescale for implementation. Failure to make those findings may amount to an error of law in the tribunal’s reasons.

The respondent, employed by the Department for Work and Pensions as a Band C adviser, injured her right arm at work. She alleged that delays in occupational health referrals and the provision of recommended workplace equipment prevented her from returning effectively to work.

The Manchester Employment Tribunal dismissed claims of less favourable treatment and harassment but upheld the reasonable-adjustments claim under sections 3A(2) and 4A of the Disability Discrimination Act 1995. The Secretary of State appealed, arguing that the tribunal had failed to identify the substantial disadvantage, analyse the proposed adjustments, and determine a reasonable implementation period.

1. Appeal allowed. The finding that the employer failed to make reasonable adjustments was set aside. The issue was remitted to the same employment tribunal for rehearing.
2. The tribunal had adopted too broad an approach. It identified the role requirements as sitting at a workstation, interviewing customers and completing paperwork, but did not make sufficient findings about how those requirements placed the respondent at a substantial disadvantage because of her disability.
3. Following Environment Agency v Rowan [2008] ICR 218, a tribunal must identify the relevant provision, criterion or practice, any physical feature, the appropriate comparator and the nature and extent of the substantial disadvantage. Without that analysis it cannot determine what steps would be reasonable under section 4A of the Disability Discrimination Act 1995.
4. The tribunal was entitled to consider the cumulative effect of adjustments, but it had to explain how the recommended equipment and other measures would prevent the identified disadvantage. It was not sufficient simply to accept occupational health recommendations, particularly where the reports referred to other physical complaints or contained conflicting recommendations.
5. The tribunal also had to assess the reasonable timescale for taking the required steps. Its conclusions on the statutory test and burden of proof were adequately directed, but its findings on the Rowan issues and implementation period were insufficient.
6. The matter was remitted to the original tribunal because no major perversity issue had been alleged and there was no reason why it could not reconsider the adjustment issues.

• Manchester Employment Tribunal: dismissed the claims of less favourable treatment and harassment, but upheld the claim of failure to make reasonable adjustments under sections 3A(2) and 4A of the Disability Discrimination Act 1995 in reasons dated 1 July 2009.
• Employment Appeal Tribunal: allowed the appeal on the adequacy of the tribunal’s reasoning, set aside the reasonable-adjustments finding and remitted that issue to the same tribunal.