Wilcox v Birmingham CAB Services Ltd

An employer is not required to know the precise medical diagnosis before the duty to make reasonable adjustments arises. It must, however, know or reasonably be expected to know that the employee has an impairment with substantial and long-term adverse effects, and that the employee is disadvantaged by the disability in the relevant way.

The duty under section 4A of the Disability Discrimination Act 1995 concerns a sufficiently identified adjustment. The employer bears the burden of showing that the adjustment is unreasonable, but need not answer speculative counter-arguments that have not been raised.

Direct discrimination requires treatment on the ground of disability. An adverse impact caused by disability is not, without more, direct discrimination. For constructive dismissal, an earlier breach is relevant only if it formed part of the sequence of events in response to which the employee resigned.

The claimant, a debt adviser with agoraphobia and travel anxiety, appealed against an Employment Tribunal’s dismissal of claims for direct disability discrimination, failure to make reasonable adjustments and constructive unfair dismissal.

The Tribunal found that the respondent lacked actual or constructive knowledge of the claimant’s disability before her resignation. It also found that a permanent guarantee that she would work only at two chosen bureaux was not a reasonable adjustment, that the treatment was not on the ground of disability, and that she had not resigned in response to an earlier salary reduction.

The appeal concerned the statutory knowledge requirements, the burden of proof and scope of the reasonable-adjustments duty, the distinction between direct discrimination and disability-related disadvantage, and the proper approach to constructive dismissal.

1. Reasonable adjustments. The appeal on the section 3A(2) claim was dismissed. Section 4A(3)(b) requires actual or constructive knowledge both that the employee is disabled and that the employee is likely to be disadvantaged by the disability in the manner identified by section 4A(1). The second question does not arise if the employer lacks knowledge of the disability.

2. A precise diagnosis is unnecessary. The employer must nevertheless know, or reasonably be expected to know, that the employee has a mental or physical impairment whose adverse effects are substantial and long-term. On the evidence, the Tribunal was entitled to find that the respondent did not acquire that knowledge before the claimant’s resignation. The finding was factual and was not perverse.

3. The Tribunal also permissibly concluded, in the alternative, that permanently removing the contractual mobility requirement and guaranteeing work at the claimant’s preferred bureaux was not a reasonable adjustment. The burden of proving that the proposed adjustment was unreasonable lay on the respondent. That burden applies only where the adjustment, or a particular counter-argument, has been sufficiently identified. The Tribunal was not required to investigate a speculative possibility of financial assistance which had not been positively raised.

4. Direct discrimination. The appeal on the section 3A(5) claim was dismissed. The respondent’s insistence on mobility was directed to the operational requirements of its funding contract, not the claimant’s disability. A disadvantage resulting from the application of a requirement because of disability is distinct from treatment on the ground of disability. The Tribunal’s findings made detailed comparator and burden-of-proof arguments immaterial.

5. Constructive dismissal. The appeal was dismissed. Although the Tribunal had stated the law by reference to Claridge v Daler Rowney Ltd, its substantive reasoning applied the contractual trust-and-confidence test. Any misdirection was therefore immaterial. The claimant had agreed to the revised salary terms and, in any event, the Tribunal was entitled to find that she did not resign in response to the salary reduction. An earlier breach cannot be relied upon merely because a later event keeps an unaccepted chain alive; it must form part of the sequence of events in response to which the employee resigns.

6. The appeal was dismissed in its entirety.

• Employment Tribunal, Birmingham: dismissed the claims for direct disability discrimination, failure to make reasonable adjustments and constructive unfair dismissal. The Reasons were sent to the parties on 22 March 2010.
• Employment Appeal Tribunal: dismissed the appeal against those findings.