Leeds Teaching Hospital NHS Trust v Foster

For a reasonable adjustment to satisfy the duty under the Disability Discrimination Act 1995, it is sufficient that the adjustment offered a prospect of removing the disabled employee’s disadvantage. A real or good prospect is sufficient, but a lesser prospect is not automatically insufficient.

The assessment is prospective. The tribunal must consider the chance that the adjustment would have worked when the employer should have taken it. In an appropriate case, the employer may be better placed to show that the adjustment was unlikely to succeed. An employer must also consider the reasons for an employee’s sickness absence before deciding whether dismissal is appropriate.

Paul Foster, a disabled employee of Leeds Teaching Hospital NHS Trust, became unable to work after his relationship with his line manager broke down. He alleged bullying and harassment and maintained that returning to the Security Department would worsen his stress.

The Employment Tribunal found that the Trust should have placed him on its redeployment register earlier, as a reasonable adjustment, and that it had unfairly dismissed him without properly considering the reasons for his absence. The Trust appealed against both findings. The central issues were whether there was a sufficient prospect that redeployment would remove the disadvantage and whether the dismissal process could properly separate the absence from the causes of that absence.

1. Disability discrimination. The appeal against the finding of disability discrimination was dismissed. The requirement that Mr Foster could work only in the Security Department placed him at a substantial disadvantage because his stress arose from working there. The Trust therefore had to consider reasonable adjustments under section 4A(1) of the Disability Discrimination Act 1995.
2. The proposed adjustment was earlier placement on the redeployment register. The tribunal was entitled to find that this was reasonable. Under section 18B(1)(a), the assessment had to be made prospectively, as the chance of a suitable post appearing would have been assessed in January 2008, rather than retrospectively by reference only to what later occurred.
3. A real or good prospect of redeployment was sufficient, but the authorities did not establish that anything less could never suffice. Cumbria Probation Board v Collingwood (UKEAT/0079/08/JOJ) and Romec Ltd v Rudham (UKEAT/0069/07/DA) were applied and explained accordingly. The Trust’s size and workforce made the tribunal’s assessment open to it. The evidential burden then passed to the Trust, which had not shown that a suitable post was unlikely to become available.
4. Unfair dismissal. The appeal against the finding of unfair dismissal was also dismissed. The Trust had wrongly treated the sickness absence as separate from the reasons for it. Even though the bullying and harassment allegations had been rejected, Mr Foster continued to believe that the workplace treatment had caused his stress. The employer should have considered those reasons and whether there was an alternative to dismissal.
5. The tribunal’s conclusion was not perverse. The Trust’s failure to consider redeployment in January 2008 had set in train the later events, and the dismissal could not fairly be assessed without considering that earlier failure.

• Employment Tribunal: upheld Mr Foster’s complaints of disability discrimination and unfair dismissal.
• Employment Appeal Tribunal: dismissed the Trust’s appeal against both findings.