Land Rover v Short

Where an agreed list of issues is reasonably capable of competing interpretations, an Employment Tribunal must resolve the procedural position fairly and in time. If a disputed interpretation would require a party to obtain further evidence or seek an adjournment, the Tribunal should identify its view and invite any consequential application before deciding the case.

The reasonableness of an adjustment under the Disability Discrimination Act 1995 depends on all the circumstances. Requiring an existing employee to move so that a disabled employee can take a suitable role is not necessarily unreasonable in a large undertaking, but neither is it inevitably reasonable. The statutory factors, including practicability and the size and nature of the undertaking, require fact-sensitive assessment.

The claimant, a disabled production-line worker, was dismissed after Land Rover’s restricted-workers process did not identify suitable alternative employment. The Employment Tribunal upheld claims for failure to make reasonable adjustments and unfair dismissal. It found that Land Rover should have disapplied a collectively agreed no-bumping rule and required an unrestricted employee to move from a suitable role.

Land Rover appealed. During the hearing below it had objected that compulsory movement, or “bumping”, was outside the agreed list of issues. It said that, if the point were in issue, it would seek an adjournment to call further evidence. The Tribunal did not rule on the point until its written decision. The central issue was whether that course caused material procedural unfairness and whether the substantive findings could nevertheless stand.

1. Appeal allowed and remitted. The Employment Tribunal committed a material procedural irregularity and error of law by leaving unresolved, until its decision, whether the agreed list of issues encompassed compulsory movement of another employee to create a role for the claimant.

2. Natural justice required Land Rover to know the case it had to meet. The wording of the agreed issue was open to argument. Once the Tribunal knew that its interpretation could cause Land Rover to seek an adjournment and call further evidence, it had to address the point. If it needed time to decide the issue’s scope, it should then have invited further submissions and an adjournment application.

3. The procedural error was material. Further evidence concerning the practicability and industrial consequences of bumping might affect the assessment of whether that step was a reasonable adjustment under section 4A of the Disability Discrimination Act 1995. The EAT could not hold that the Tribunal’s conclusion was plainly and obviously correct despite the irregularity.

4. The original conclusion was not, however, necessarily perverse. In a large undertaking, where disability creates a risk of dismissal, asking another employee to move to another role may be reasonable. Reasonableness remains fact-specific and must be assessed by reference to all relevant circumstances, assisted by section 18B factors including practicability and the undertaking’s size and nature.

5. The unfair-dismissal and contribution issues depended on the adjustment finding and were also remitted. The case was remitted to the same Tribunal, if practicable.

• Employment Appeal Tribunal: Allowed Land Rover’s appeal for material procedural unfairness and remitted all relevant issues to the same Employment Tribunal, if practicable.
• Employment Tribunal, Birmingham: Decision sent to the parties on 29 July 2010. It upheld claims under the Disability Discrimination Act 1995 and for unfair dismissal.