Veterinary Laboratories Agency v Sandvik

An Employment Tribunal must determine the issues identified at case management, unless additional issues emerge during the hearing and the parties understand that they will be decided. It must address the pleaded reasonable adjustments and cannot substitute other adjustments for those issues. Direct disability discrimination requires consideration of the statutory justification defence. In unfair dismissal cases, the Tribunal must ask whether the employer’s decision, including its procedure, fell within the range of reasonable responses, without substituting its own view. Where errors in discrimination findings are closely connected with the unfair dismissal reasoning, the dismissal finding may also require remission.

The Claimant brought disability discrimination and unfair dismissal claims against the Respondent. A case management order identified complaints concerning a trial period, a withdrawn dismissal notice, an unsatisfactory appraisal, transfer to another post, dismissal, reasonable adjustments, time limits and unfair dismissal.

The Employment Tribunal upheld several disability discrimination complaints and found the dismissal unfair. It failed expressly to determine the pleaded reasonable-adjustment issues, justification and time-bar issues, and made findings on matters outside the identified issues. The Respondent appealed. The central questions were whether those omissions and errors invalidated the Tribunal’s conclusions and whether the unfair dismissal finding could stand.

1. Appeal allowed. The Employment Tribunal’s judgment on disability discrimination and unfair dismissal was set aside. The issues were remitted to a freshly constituted Employment Tribunal.

2. A Tribunal must decide the issues identified in a case management order. It must explain why it has not decided an issue in dispute. It commits an error by failing to decide a listed issue or by making adverse findings on an issue that was neither pleaded nor identified, unless the issue emerged during the hearing and the parties understood that it would be determined. The Tribunal’s approach was inconsistent with Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 and Chapman v Simon [1994] IRLR 124.

3. The duty to make reasonable adjustments required consideration of the adjustments pleaded in the case management order. Findings about other adjustments made or offered by the employer did not answer the pleaded issues. Although discussion of possible adjustments may be relevant, failure to discuss adjustments is not itself a breach of the duty.

4. The Tribunal failed to address whether the relevant discrimination was justified under section 3A(3) of the Disability Discrimination Act 1995. That omission independently justified allowing the appeal on the discrimination issues. The time-bar issue was also fact-sensitive and had not been determined for the later complaints.

5. As to unfair dismissal, the correct question under section 98(4) of the Employment Rights Act 1996 was whether dismissal fell within the range of reasonable responses, without substituting the Tribunal’s view for that of the employer. The assessment had to address the decision to dismiss and the procedure by which it was carried out. This principle was stated in Sarkar v West London Mental Health NHS Trust [2010] IRLR 508, applying Iceland Frozen Foods Ltd v Jones [1982] IRLR 439 and [1983] ICR 17.

6. The unfair dismissal reasoning was closely connected with the defective disability discrimination reasoning. The Tribunal had not demonstrated a correct application of section 98(4) and the authorities. Its findings on remedy, including mitigation, contribution and Polkey, therefore also fell with the judgment.

The remission was controlled and concerned issues 2(iii), 2(iv), 4(i), 4(ii), 6 and 7 of the case management order, including time bar and justification.

• Employment Appeal Tribunal: Appeal from an Employment Tribunal chaired by Employment Judge Silverman sitting at London South. Full reasons were sent on 6 May 2011. The EAT set aside the judgment and ordered controlled remission to a fresh Employment Tribunal.