Stoyle v The Artful Group Ltd (t/a Art Group) (Disability Discrimination)

An employment tribunal must identify and apply the statutory duty to make reasonable adjustments. Where a provision, criterion or practice places a disabled employee at a substantial disadvantage, the tribunal must consider whether reasonable steps should have been taken to prevent that disadvantage. The duty is not reduced to making reasonable enquiries, nor does it depend on the employee insisting on an adjustment. Direct discrimination and disability-related discrimination are distinct causes of action and require separate consideration. In a constructive dismissal claim, the relevant question is whether the resignation was at least partly in response to a fundamental breach.

Harry Stoyle appealed against an Employment Tribunal judgment dated 6 October 2010, which dismissed his claims against his former employer. He alleged constructive dismissal, direct disability discrimination, disability-related discrimination and failure to make reasonable adjustments after an angina attack left him disabled for the purposes of the Disability Discrimination Act 1995.

The respondent did not participate in the appeal and had been debarred from appealing. The central issues were whether the tribunal had applied the correct statutory test, addressed each discrimination claim, made adequate findings about available light work, and properly assessed the constructive dismissal claim.

1. The appeal was allowed. The Employment Tribunal’s judgment was set aside and the matter was remitted to a freshly constituted tribunal, which could also determine remedy if appropriate.

2. Under section 4A of the Disability Discrimination Act 1995, supplemented by section 18B, the tribunal had to consider whether the employer applied a provision or practice requiring heavy duties which placed the claimant at a substantial disadvantage, and whether there were reasonable steps to prevent that disadvantage. The tribunal failed to address identified alternatives, including yardsman work, work undertaken by agency workers and outwork. It also failed to consider whether the burden of proof had shifted under section 17A(1C), as discussed in Project Management v Latif [2007] IRLR 579.

3. The tribunal impermissibly diluted the statutory duty by describing it as a duty to make reasonable enquiries. There was no statutory basis for holding that the duty arose only if the claimant attended and insisted that light duties be provided.

4. The tribunal failed altogether to determine the distinct claims of direct disability discrimination and disability-related discrimination. Its finding concerning the availability of light duties was also based on a factual misconception and could not stand.

5. The failures concerning disability discrimination affected the constructive dismissal claim. Applying Meikle v Nottinghamshire County Council [2005] ICR 1, the correct question was whether the resignation was at least in part in response to a fundamental breach. The tribunal’s conclusion that statutory sick pay prompted the resignation was unsupported by a finding rejecting the claimant’s evidence.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal judgment dated 6 October 2010. The judgment was set aside and the claims were remitted to a freshly constituted tribunal.