Gardner v Chief Constable of West Midlands Police

On a remission concerning reasonable adjustments, the tribunal must determine the functional effects of the disability, whether the relevant provision, criterion or practice caused a substantial disadvantage, and whether the proposed adjustment would remove or reduce that disadvantage. An adjustment cannot be reasonable if there is no disadvantage for it to address.

A remitted tribunal must stay within the scope of the remission. However, an arguable excursion beyond it does not require intervention unless it materially affected the result. Appellate interference with factual findings, including credibility findings, is unavailable where there was ample evidential material capable of supporting the tribunal’s conclusion.

The claimant, a serving police officer with a knee condition, alleged that the respondent failed to make a reasonable adjustment by permitting home working, or a mixture of home and office working. The Birmingham Employment Tribunal, chaired by Employment Judge Gaskell, dismissed the remitted claim.

The remittal followed an earlier successful appeal by the respondent. The earlier Employment Appeal Tribunal had held that the original tribunal had failed to identify the functional effects of the claimant’s condition and the resulting substantial disadvantage caused by the requirement to work at a West Midlands site.

The claimant appealed again. He contended that the remitted tribunal had exceeded the limited scope of the remission and had reached a perverse conclusion by rejecting his evidence of disadvantage.

1. Appeal dismissed. The remitted tribunal acted within the scope of the remission in all respects material to its decision.

2. The earlier remittal had to be read in the context of the earlier EAT judgment. It required an enquiry into the functional effects of the claimant’s disability, whether the site-working requirement caused a substantial disadvantage, and whether home or remote working would prevent or reduce it. Those matters were inseparable from deciding whether there was a reasonable adjustment under the Disability Discrimination Act 1995.

3. A tribunal to which a case is remitted has jurisdiction only to the extent of the remittal. It commits an error of law if it reaches a material conclusion outside that scope. But a non-material departure does not invalidate its decision. The tribunal’s consideration of the claimant’s functional limitations, substantial disadvantage and the proposed adjustment was plainly within the remittal. Any possible consideration of the identification of the PCP or the respondent’s knowledge was immaterial to the result.

4. The tribunal was entitled to reject the claimant’s account that he could work only from home. It evaluated that evidence against the medical evidence, which consistently supported office-based duties, and against its sustainable adverse findings on credibility. It was therefore entitled to find that site working caused no substantial disadvantage. That finding independently defeated the reasonable-adjustments claim.

5. The criticism of one observation concerning allegations made by the claimant against other persons was, to an extent, justified. It was nevertheless gratuitous and did not materially affect the tribunal’s distinct and well-supported credibility findings. The perversity challenge failed because ample evidence supported the tribunal’s conclusion.

• Employment Appeal Tribunal: This appeal was dismissed.
• Employment Tribunal at Birmingham: The tribunal chaired by Employment Judge Gaskell dismissed the remitted reasonable-adjustments claim.
• Employment Appeal Tribunal: An earlier appeal by the respondent was allowed and the reasonable-adjustments issue was remitted for determination (UKEAT/0174/11 and UKEAT/0502/11).