Nottingham City Transport Ltd v Harvey

A reasonable-adjustments claim requires identification of a provision, criterion or practice (PCP) which causes a disabled person a substantial comparative disadvantage. Unfair treatment alone does not satisfy that statutory requirement.

A one-off flawed application of a disciplinary procedure will not ordinarily constitute a practice. A practice generally has an element of repetition and general application beyond the individual claimant. The tribunal must identify the PCP and the causative disadvantage before deciding whether a proposed adjustment was reasonable.

The claimant, a cleaner with depression, was dismissed for misconduct after leaving work early, failing to clock out and submitting inaccurate timesheets. The Employment Tribunal held that the dismissal was unfair because the employer had not reasonably investigated the reasons for his conduct or considered disability-related mitigation.

The Tribunal also upheld a reasonable-adjustments claim under section 4A(1) of the Disability Discrimination Act 1995. It treated the flawed disciplinary process applied to the claimant as the relevant PCP and held that a reasonable adjustment would have been a proper investigation, consideration of mitigation and no dismissal.

The employer appealed only the discrimination finding. The central issue was whether that one-off disciplinary process was capable of amounting to a PCP, and whether unresolved alternative PCPs should be remitted.

1. Appeal allowed. The Employment Tribunal erred in law in treating the particular flawed disciplinary process applied to the claimant as a PCP under section 4A(1) of the Disability Discrimination Act 1995.

2. The statutory inquiry requires a tribunal first to identify the PCP, then the substantial disadvantage caused by it, before it can assess the reasonableness of an adjustment. This follows Environment Agency v Rowan [2008] ICR 218. It is insufficient to identify disability-related bad treatment and infer that an adjustment should have been made.

3. Where the alleged PCP is a practice, it ordinarily requires repetition and application to persons other than the individual claimant. A single defective disciplinary process, unsupported by evidence that the employer practised failing to investigate or disregarding mitigation, was unfair treatment but not a PCP. The claimant had also conceded that there was no such evidence.

4. The discrimination claim was remitted to the same Tribunal. It had not resolved whether either of two alternative alleged practices—defective management of communications about car-park access, or not forewarning employees of investigatory meetings—existed and placed the claimant at a substantial disability-related disadvantage. If so, the Tribunal must decide as matters of fact whether the proposed adjustments were reasonable.

5. Applying the proportionality guidance in Sinclair Roche & Temperley v Heard [2004] IRLR 763, remission to the same Tribunal was appropriate. A fresh hearing before a different tribunal would be disproportionate, and the original Tribunal’s error did not render its decision wholly flawed.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the reasonable-adjustments finding and remitted that issue to the same Tribunal.

• Employment Tribunal, Nottingham: Held the claimant unfairly dismissed in reasons dated 16 December 2010. In reasons dated 20 September 2011, it also upheld his reasonable-adjustments claim under the Disability Discrimination Act 1995.