Bishun v Hertfordshire Probation Service (National Probation Service)

An Employment Tribunal’s decision should be read fairly and as a whole. An appellate tribunal should avoid microscopic criticism, appellate re-trial and substitution of its own view of the facts. A reasonable-adjustments claim may fail where the claimant’s refusal or failure to co-operate frustrated attempts to identify and provide assistance. A formal diagnostic label is not essential where the evidence establishes a substantial, long-term adverse effect through a combination of impairments.

The claimant, a trainee probation officer, brought claims of disability-related discrimination, direct disability discrimination and failure to make reasonable adjustments. Race discrimination claims had been withdrawn. The respondent accepted that the claimant was disabled by sleep apnoea, and the Employment Tribunal also found significant reading and concentration difficulties, although no formal diagnosis of dyslexia had been made.

The Employment Tribunal dismissed the claims. The claimant appealed on grounds concerning the timing of support for dyslexia and the provision of equipment, including assistive technology obtained through Access to Work. The central issues were whether the Tribunal had wrongly treated the absence of a dyslexia diagnosis as decisive and whether the respondent had failed to take or monitor reasonable steps.

1. The appeal was dismissed. The Employment Tribunal’s decision, read as a whole, disclosed no error of law.
2. An appellate tribunal must approach an Employment Tribunal’s reasons broadly. It should not seize on an infelicitous phrase or subject a lengthy decision to unrealistic, minute and myopic scrutiny. The proper task is to determine whether, on an overview, the Tribunal’s reasoning explains its decision without substituting the appellate tribunal’s view or re-trying the facts. The approach in Piglowska v Piglowski [1999] UKHL 27 was applied.
3. The Tribunal was entitled to find that the claimant’s failure to attend Access to Work, failure to provide the necessary document for signature and failure to pursue available information technology frustrated the provision of assistance. The duty to take reasonable steps rested on the respondent, but the facts did not establish the proposed legal obligation to monitor an application for twelve months. The evidence showed that the respondent had in any event chased and monitored the claimant. The reasoning in Callaghan v Glasgow City Council [2001] IRLR 724 was materially considered and applied to the significance of the claimant’s lack of co-operation.
4. The absence of a formal dyslexia diagnosis did not mean that the claimant was not disabled. The Tribunal had found a combination of impairments producing substantial, long-term adverse effects. Although its statement that support could not be claimed because dyslexia had not been identified was an over-simplification, the decision as a whole contained extensive findings on the disability-related and direct discrimination complaints, and the respondent’s own assessment was held justified.

• Employment Tribunal, Bedford: dismissed the claimant’s claims of disability-related discrimination, direct disability discrimination and failure to make reasonable adjustments.
• Employment Appeal Tribunal: granted permission on two grounds concerning support for dyslexia and reasonable adjustments relating to equipment, and dismissed the appeal.