Matinpour v Rotherham Metropolitan Borough Council

An employment tribunal must keep the statutory tests for direct disability discrimination, disability-related discrimination and the duty to make reasonable adjustments distinct. The reasonable-adjustments duty under Disability Discrimination Act 1995, section 4A, does not require less favourable treatment, material and substantial treatment, or justification of a failure to comply with the duty. In an unfair-dismissal claim, the tribunal must separately assess whether dismissal was reasonable in all the circumstances under section 98(4) of the Employment Rights Act 1996. The absence of discrimination does not establish that a dismissal was fair. Where the tribunal’s reasons do not reveal that the correct tests were applied, remission may be appropriate, particularly where the fact-finding was careful and there is no issue of bias or prejudgment.

Mr Matinpour appealed against the dismissal of his claims by an Employment Tribunal sitting in Sheffield in March 2011. His claims concerned unfair dismissal, direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments. His employment had been terminated on capability grounds after a lengthy period of sickness absence.

The appeal challenged the tribunal’s legal directions on disability discrimination and reasonable adjustments, its assessment of fairness under section 98(4) of the Employment Rights Act 1996, and the alleged perversity of its conclusions. The central questions were whether the tribunal had applied the correct statutory tests and whether its reasons adequately explained the dismissal of the claims.

The appeal was allowed on grounds 1, 2 and 3 and dismissed on ground 4.

1. Disability discrimination. The tribunal had set out an erroneous analysis of the issues. Its reasoning did not make clear how it moved from that incorrect analysis to its conclusion that the claimant had failed at the first hurdle. The appeal was therefore allowed because the reasoning process could not be identified reliably.
2. Reasonable adjustments. The tribunal had wrongly imported three requirements into the statutory test under section 4A of the Disability Discrimination Act 1995: less favourable treatment, treatment that was material and substantial, and the possibility that a failure to make reasonable adjustments could be justified. Those requirements were not part of the section 4A test. However, the notice of appeal did not properly challenge the tribunal’s factual findings concerning the three alleged provisions, criteria or practices and proposed adjustments.
3. Unfair dismissal. The tribunal failed properly to determine whether the employer had acted reasonably in treating capability as a sufficient reason for dismissal under section 98(4) of the Employment Rights Act 1996. Its brief conclusion did not address the central arguments concerning the reasonableness of dismissal. The statement that it would be inequitable to find the dismissal unfair because there had been no discrimination did not explain the decision and could not replace the statutory assessment.
4. Perversity and disposal. It was unnecessary to determine perversity because the appeal succeeded on the unfair-dismissal ground. Applying the factors in Sinclair Roche & Temperley v Heard [2004] IRLR 763, the case was remitted to the same tribunal. The fact-finding was meticulous, there was no suggestion of bias or partiality, the hearing was recent, and the tribunal could reconsider the matter with the guidance given.

• Employment Appeal Tribunal: Appeal allowed on grounds 1, 2 and 3 and dismissed on ground 4. The case was remitted to the same Employment Tribunal for reconsideration.
• Employment Tribunal, Sheffield: Claims of unfair dismissal, direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments dismissed. The race-discrimination claim had been withdrawn.