Fuller v London Borough Of Redbridge

In a physical-feature reasonable-adjustments claim, the tribunal should determine whether the feature placed the disabled person at a substantial disadvantage, whether the proposed step would avoid or reduce that disadvantage, and whether the step was reasonable. The assessment is intensely fact-sensitive.

The duty does not arise where no substantial disadvantage exists at the material time. Even where a disadvantage has existed, an employer need only take reasonable steps. It may properly consider the effect of a proposed arrangement on workplace relationships and the practical context of a return to work.

The claimant, a finance officer with sarcoidosis and asthma, was disabled for the purposes of the Disability Discrimination Act 1995. She alleged that her former employer had failed to make reasonable adjustments to protect her from cold draughts through open office windows. She also brought claims for direct discrimination, constructive unfair dismissal and breach of contract.

The Employment Tribunal dismissed all claims. It found no failure to make reasonable adjustments and held, among other matters, that the proposed separate reception-area working arrangement was not reasonable. The claimant appealed principally against that conclusion. The central issue was whether the Tribunal had erred in law in its approach to reasonable adjustments.

1. Appeal dismissed. The Employment Appeal Tribunal held that no error of law had been shown in the Employment Tribunal’s rejection of the reasonable-adjustments complaint.

2. Applying the three-stage approach stated in Environment Agency v Rowan, [2008] IRLR 20, the tribunal must ask whether the physical feature caused a substantial disadvantage, whether the proposed adjustment would avoid or reduce it, and whether that adjustment would be reasonable.

3. The assessment was fact-sensitive. The Employment Tribunal had found that open windows caused the claimant difficulty in winter but not from May to September. It was therefore entitled to conclude that she was not disadvantaged by open windows at the time she was due to return to work in June and July 2010. In the absence of a substantial disadvantage at that time, the adjustment duty did not arise.

4. The Employment Tribunal was also entitled to find that the respondent had previously taken reasonable steps to address the winter problem. It could take account of difficulties within the claimant’s team when deciding that placing her in a separate reception area was not a reasonable adjustment. The respondent had taken reasonable steps to facilitate a return-to-work discussion, including permitting the exceptional attendance of the claimant’s solicitor. The claimant resigned instead of attending that meeting.

5. Accordingly, grounds 1 to 4 failed. The constructive-dismissal ground necessarily failed, and the limitation ground was academic.

• Employment Appeal Tribunal: dismissed the claimant’s appeal on 12 July 2013.

• Employment Tribunal: the East London Employment Tribunal dismissed the claims following a hearing between 27 February and 2 March 2012. Its reasons were promulgated on 4 April 2012.