Chief Constable Of West Midlands Police v Gardner

In a reasonable-adjustment claim, an employment tribunal must identify the disability’s relevant functional effects and explain how they caused the substantial disadvantage relied upon. Without that analysis, it cannot assess whether a proposed adjustment was necessary and reasonable.

The statutory focus is the practical outcome of the adjustment, not the employer’s thought processes. In calculating compensation for disability discrimination, the tribunal must apply tort principles. It may depart from recognised pension-loss methodologies, including the Employment Tribunals guidelines, where it gives cogent, intelligible and appropriate reasons. Such departure is exceptional and tribunals should avoid mixing methodologies without justification.

The Chief Constable appealed against the liability decision of an Employment Tribunal, which upheld Mr Gardner’s claim that the police force had failed to make reasonable adjustments under the Disability Discrimination Act 1995. The tribunal had found that remote working should have been provided, but had not clearly identified the functional effects of Mr Gardner’s knee condition or the disadvantage those effects caused.

Mr Gardner cross-appealed against the remedy decision, particularly the use of the Ogden tables rather than the tables annexed to the Employment Tribunals’ 2003 pension-loss booklet. The central issues were whether the liability reasoning was legally adequate and whether the pension-loss calculation involved an error of law.

1. Liability appeal allowed. The tribunal had erred in law by failing to explain what aspect of Mr Gardner’s disability caused the substantial disadvantage arising from the requirement to work at a West Midlands site. Merely identifying a general knee condition was insufficient. The tribunal needed to identify what the claimant could and could not do, the resulting disadvantage, and how remote or mixed home-and-office working would prevent that disadvantage.
2. The requirements identified in Environment Agency v Rowan [2008] ICR 218 were correct: the tribunal must identify the provision, criterion or practice or physical feature, the appropriate comparators, and the nature and extent of the substantial disadvantage. The functional link between disability, disadvantage and proposed adjustment must be sufficiently reasoned.
3. The phrase in section 4A concerning steps it is reasonable for the employer to have to take focuses on adjustments necessary to achieve the statutory outcome. It does not mean that an adjustment is excluded merely because another adjustment might produce the same result. The issue is whether the step is necessary towards preventing the particular substantial disadvantage.
4. Following Royal Bank of Scotland v Ashton [2011] ICR 632, reasonable adjustment is assessed objectively by reference to practical outcome. The employer’s thought processes and reasons for failing to make an adjustment are not the statutory focus, although the tribunal’s observations on those matters did not themselves invalidate the decision.
5. The case was remitted to a fresh tribunal on the limited issue whether home working, or a mixture of home and office working, was a reasonable adjustment for the identified disability and disadvantage. The other unchallenged findings stood.
6. The remedy appeal was academic and the observations on pension loss were obiter. Under section 17A of the Disability Discrimination Act 1995, compensation is calculated according to tort principles. A tribunal is not legally bound to use either the 2003 booklet’s methodology or the Ogden approach, but departure requires cogent, intelligible and appropriate reasons. The tribunal’s reasons based on changed economic conditions were sufficient, so its use of the Ogden tables was not an error of law.

• Employment Tribunal, Birmingham: Liability decision dated 25 January 2011 upheld the reasonable-adjustment claim but dismissed direct-discrimination and harassment claims. Remedy decision dated 19 August 2011 awarded compensation including pension loss.
• Employment Appeal Tribunal: The liability decision was set aside and remitted to a fresh tribunal on the limited reasonable-adjustment issue. The remedy appeal was academic; the tribunal’s pension-loss approach was held not to involve an error of law.