Salford NHS Primary Care Trust v Smith (Disability Discrimination)

Reasonable adjustments must address the substantial disadvantage caused by the relevant provision, criterion or practice. They are primarily directed to enabling a disabled employee to remain in, or return to, work. Consultation, investigation, exploratory proposals and trial periods are not adjustments in themselves unless they produce the required practical effect. A career break is not a reasonable adjustment where it neither enables a return to work nor alleviates the disadvantage. Constructive dismissal requires an objective breach of the implied term of trust and confidence. A final act must contribute to a cumulative repudiatory breach and cannot be wholly innocuous.

The claimant, an occupational therapist and team leader, was absent from work with chronic fatigue syndrome. She remained unfit for any work and eventually resigned. The Employment Tribunal found that the expectation that she perform her full role during contracted hours placed her at a substantial disadvantage. It held that the employer should have proposed non-productive rehabilitative duties and found disability discrimination and constructive dismissal.

The employer appealed. The claimant cross-appealed, contending that a career break was an alternative reasonable adjustment. The central issues were whether either proposal fell within the statutory duty to make reasonable adjustments and whether the Tribunal had properly analysed constructive dismissal.

1. Appeal allowed; cross-appeal dismissed. The Employment Tribunal identified the relevant PCP as the expectation that the claimant would perform her full role within contracted hours. Any adjustment had to prevent that PCP from placing her at the substantial disadvantage identified, including her inability to multi-task, deal with clients and work in a busy environment.
2. Under sections 4A and 18B of the Disability Discrimination Act 1995, reasonable adjustments are principally concerned with enabling the disabled person to remain in, or return to, work. A proposal that the employer should create something which the claimant could take to her GP to obtain permission for light, non-productive work was not an adjustment. It would not mitigate the effects of the PCP.
3. Consultations, trials, exploratory investigations and similar steps are preparatory processes rather than adjustments themselves. Tarbuck v Sainsbury’s Supermarkets Ltd and Environment Agency v Rowan supported that distinction. The employer’s investigations and proposed meetings did not therefore establish a failure to make reasonable adjustments.
4. A career break was equally incapable of being a reasonable adjustment. It would suspend the claimant’s duties, remove sickness benefits and neither facilitate a return to work nor alleviate the disadvantage caused by the PCP.
5. The Tribunal’s reasoning was also inadequate. It had not identified what non-productive work should have been proposed, when it should have been proposed, or how it would have prevented or alleviated the substantial disadvantage. The proposal was not an issue identified and argued before the Tribunal.
6. The constructive-dismissal finding was independently unsustainable. The implied-term question was objective. The letter referring to possible termination for capability was innocuous and did not constitute a final straw. The earlier conduct was not repudiatory, and the Tribunal’s finding depended on the erroneous conclusion that reasonable adjustments had been refused.

• Employment Appeal Tribunal: allowed the employer’s appeal and dismissed the claimant’s cross-appeal.
• Employment Tribunal: found disability discrimination arising from failure to make reasonable adjustments and unfair constructive dismissal.