Jennings v Barts And The London NHS Trust

An employer may have actual or constructive knowledge of disability where the information available identifies a longstanding mental impairment, even if its diagnosis was later corrected or relabelled. A new label for the same condition is not impermissible hindsight.

In a reasonable-adjustments claim, the claimant must identify proposed adjustments with enough specificity for the employer and tribunal to address them. The claimant need not establish a prima facie case explaining how the employer failed to implement each adjustment. The tribunal must decide objectively whether an adjustment was reasonable on the evidence. It need not address every listed proposal separately where its reasons adequately resolve their substance.

The claimant, a senior IT support engineer, was dismissed after prolonged and recurrent sickness absence. He brought claims of unfair dismissal and disability discrimination. The Employment Tribunal dismissed those claims, while finding that the employer had constructive knowledge of his disability for the purpose of the reasonable-adjustments duty.

The claimant appealed the dismissal of his claims. The employer cross-appealed the constructive-knowledge finding. The central issues were whether later psychiatric diagnoses involved hindsight, whether the Tribunal had applied the correct approach to reasonable adjustments, and whether its conclusion that dismissal was fair was legally sustainable.

1. Appeal and cross-appeal dismissed. The Employment Tribunal was entitled to find that the employer, through the information held by occupational health and management, could reasonably have been expected to know that the claimant had a mental impairment amounting to a disability.

2. The Tribunal had not used hindsight improperly. Although PTSD was not the final diagnosis, it was itself a mental impairment. Relabelling the same underlying mental condition did not amount to diagnosing an impairment for the first time after the event. Constructive knowledge remained a factual question, and there was sufficient evidence to support the Tribunal’s conclusion.

3. The Tribunal had overstated the effect of Project Management Institute v Latif [2007] IRLR 579. A claimant need only raise a proposed adjustment with sufficient specificity to permit an evidential response and an assessment of reasonableness. The claimant need not show how the employer failed to comply with it. The error did not affect the result because the Tribunal had decided the case on its assessment of the relevant absence-policy adjustment.

4. The steps identified in Environment Agency v Rowan [2008] ICR 218 provide a logical structure: identify the PCP, the comparators, and the substantial disadvantage. Here the short-term absence policy was the PCP. The comparator group and disadvantage were sufficiently obvious, and the Tribunal was entitled to conclude that a bespoke absence policy was not a reasonable adjustment in the circumstances.

5. The Tribunal was not obliged to determine every proposed adjustment as a separate checklist item. Its discussion of redeployment, operational pressures, the claimant’s continuing absence, and the impact on colleagues adequately explained why the proposed alterations were not reasonable. Although reasonable adjustments should generally be considered separately from unfair dismissal, the Tribunal had not wrongly applied a range-of-reasonable-responses test to the adjustments issue.

6. The disability-related discrimination claim could in principle remain viable after London Borough of Lewisham v Malcolm [2008] 1 AC 1399, but required an appropriate comparator and less favourable treatment. None was established. The finding that dismissal was fair despite procedural departures was a tenable factual conclusion. Since dismissal was not found unfair, Polkey did not arise.

• Employment Appeal Tribunal — dismissed the claimant’s appeal against the dismissal of his unfair-dismissal and disability-discrimination claims, and dismissed the employer’s cross-appeal on constructive knowledge.
• Employment Tribunal — dismissed the substantive claims but found that the employer had constructive knowledge of disability for the purposes of the reasonable-adjustments duty.