McCarthy v Jaguar Cars Ltd

An Employment Tribunal should address the matters identified in Rowan when determining a reasonable-adjustments claim. The guidance is not a rigid formula. A failure to address every matter expressly is not an error of law where matters are obvious or agreed, the Tribunal determines the real issue, and its reasons adequately explain its conclusion.

Where a provision, criterion or practice is conceded to create substantial disadvantage, the central question is whether the employer's reasonable adjustment removed that disadvantage. An appellate tribunal will not interfere merely for a possible misdirection where the result was plainly and unarguably correct.

The Claimant, a disabled employee absent with depression, was selected for redundancy after a scoring exercise affecting a pool of employees. The employer assessed him by reference to his pre-disability work record and maintained the result after a re-marking on appeal.

The Employment Tribunal at Liverpool dismissed claims for unfair dismissal, direct disability discrimination and failure to make reasonable adjustments. The Claimant appealed. He contended that the Tribunal had failed to apply the structured approach in Environment Agency v Rowan and had erred in rejecting his complaint that he was not put forward for temporary secondment opportunities.

The central issues were whether the Tribunal had adequately addressed the reasonable-adjustments duty and whether its finding that the secondees were selected for superior training and qualifications disclosed an error of law.

1. Appeal dismissed. The Employment Appeal Tribunal admitted the Claimant's additional direct-discrimination ground under rule 3(10), but dismissed both grounds.
2. The structured approach in Environment Agency v Rowan requires a Tribunal to address the relevant statutory matters, including the provision, criterion or practice and the substantial disadvantage. It does so only to the extent necessary to resolve the issues on the facts. The guidance is not a statutory straitjacket. Departure from its strict order is not itself an error of law unless the Tribunal fails to decide a vital issue or to give adequate reasons: [2008] IRLR 20; [2011] ICR 632.
3. Here the Tribunal identified the PCP as the redundancy scoring criteria. The appropriate comparators were obvious: the other employees in the redundancy exercise who were not disabled. The employer had also conceded that the criteria placed the Claimant at a substantial disadvantage. The Tribunal was therefore entitled to focus on the real issue, namely whether the adjustment removed that disadvantage.
4. The Tribunal gave sustainable reasons for finding that the employer had done so. It excluded periods affected by the Claimant's disability and scored him by reference to the period when he had worked and performed well. Having found that this eliminated the disadvantage, it did not have to consider alternative adjustments such as averaging his score.
5. In any event, applying Dobie, the reasonable-adjustments conclusion was plainly and unarguably right even if there had been a misdirection: [1984] ICR 812.
6. On direct discrimination, the Tribunal had evidence capable of supporting its finding that the employees selected for secondment were better trained and qualified in the required LEAN expertise. There was also an independent, urgent business explanation for their selection. The Appeal Tribunal could not re-evaluate that factual material, and no disability-related reason for the Claimant's exclusion was established.

• Employment Appeal Tribunal: dismissed the Claimant's appeal, while allowing his application under rule 3(10) to advance an additional ground.
• Employment Tribunal, Liverpool: dismissed claims for unfair dismissal, direct disability discrimination and failure to make reasonable adjustments.