The Environment Agency v Donnelly

An employee entitled to work under flexible-hours arrangements need not alter her chosen contractual start time to avoid a disability-related disadvantage. A tribunal may identify as the relevant provision, criterion or practice the requirement to walk from distant parking when the preferred arrival time leaves the principal car park full. It must then assess whether the proposed adjustment is reasonable.

For capability dismissal under section 98(4) of the Employment Rights Act 1996, the tribunal must apply the range of reasonable responses test. It may not decide instead whether it considers dismissal objectively reasonable. An error on that issue requires remission unless only one outcome is legally possible.

The Employment Tribunal at Liverpool upheld three parts of the claimant's disability discrimination claim. It found harassment arising from an email, a failure to make reasonable adjustments by not allocating parking, and unfair dismissal for capability. It also held that the dismissal was disability discrimination.

The employer appealed. It challenged the harassment finding as perverse, the parking finding as legally erroneous and perverse, and the unfair-dismissal finding on the basis that the tribunal had substituted its own view for that of the employer. The parties agreed that the discrimination finding based on dismissal would fall if the unfair-dismissal finding failed.

The central issues were whether the email met the statutory definition of harassment, whether the tribunal correctly identified the parking-related disadvantage and reasonable adjustment, and whether it had applied the correct test of fairness under section 98(4) of the Employment Rights Act 1996.

1. Appeal allowed in part. The finding that the email of 27 January 2010 was harassment was perverse. Although the email could properly be described as less than supportive or helpful, no reasonable tribunal could find that it had the purpose or effect required by section 3B of the Disability Discrimination Act 1995. The EAT substituted a finding that the claimant had not been harassed by that email.

2. The appeal against the parking adjustment finding was dismissed. The claimant was contractually entitled to choose her arrival time within the flexitime arrangements. The employer could not require her to arrive earlier in order to avoid the disadvantage arising when the main car park was full. The tribunal was entitled to identify the relevant PCP as requiring her to walk from her car to the office in cold conditions and potentially over uneven surfaces. It had identified the substantial disadvantage and was entitled to conclude that allocating a space was a reasonable adjustment.

3. The appeal against the unfair-dismissal finding was allowed. The Employment Tribunal had stated and applied an objective reasonableness inquiry, asking whether the employer had acted reasonably, rather than whether dismissal fell outside the range of reasonable responses. Its reasoning did not correct that error. The unfair-dismissal finding, and the associated discrimination finding, therefore could not stand.

4. The EAT rejected the separate perversity challenge to the dismissal finding. The medical material gave some basis on which a tribunal could conclude that further inquiry or time for redeployment was warranted. The correct outcome was not inevitable, so the EAT could not substitute a finding that dismissal was fair. The unfair-dismissal issue was remitted to the same tribunal, with consequential handling of the associated discrimination issue to be determined after further submissions.

• Employment Appeal Tribunal: allowed the employer's appeal concerning the harassment and unfair-dismissal findings, but dismissed its appeal concerning reasonable adjustments for parking.
• Employment Tribunal, Liverpool: judgment sent on 3 January 2013. It upheld the claimant's complaints concerning the email, parking adjustment and dismissal, while rejecting other discrimination complaints.