A v B

An appellate tribunal will not upset fact-sensitive Employment Tribunal findings unless the decision was one that no reasonable tribunal, properly directing itself, could have reached. Reasons must be read fairly and as a whole.

For a reasonable-adjustments claim under the Disability Discrimination Act 1995, the claimant must identify a provision, criterion or practice which caused a substantial disadvantage. An adjournment or further medical inquiry is not a reasonable adjustment where no such disadvantage or evidential basis is established.

A sustained and knowing failure to comply with an essential professional-registration requirement, coupled with concealment of that failure, may amount to gross misconduct. It may fairly justify dismissal and constitute a repudiatory breach of contract.

The Claimant, a disabled assistant team manager in adult social care, was dismissed after failing for about three and a half years to register with the General Social Care Council despite knowing that registration was required. He alleged that depression prevented him from pursuing registration or informing management of the failure.

The Birmingham Employment Tribunal dismissed claims for disability discrimination, unfair dismissal and breach of contract. It found that the disciplinary process was fair, the asserted comparators were not comparable, no reasonable adjustment was required, and the misconduct justified summary dismissal.

The Claimant appealed on grounds concerning the adequacy of the investigation, reasonable adjustments, disability discrimination and wrongful dismissal. The central issues were whether the Tribunal's findings were perverse or legally flawed and whether the conduct amounted to gross misconduct.

1. Appeal dismissed. The Employment Appeal Tribunal held that the Employment Tribunal had correctly directed itself and that its factual conclusions could not be impugned on a perversity appeal. Its reasons were to be read broadly and fairly, rather than subjected to line-by-line scrutiny.

2. The Tribunal was entitled to find that the employer's investigation and disciplinary process satisfied the requirements in British Home Stores v Burchell, [1978] IRLR 379. The Claimant and his representative had accepted serious wrongdoing. There was no medical or other credible evidence that depression had prevented registration or disclosure, and no basis requiring the employer to obtain a further medical report.

3. The reasonable-adjustments grounds failed. The relevant requirements were attendance at the disciplinary hearing and registration with the General Social Care Council. The Tribunal was entitled to find no substantial disadvantage caused by either requirement. The hearing had already been postponed repeatedly, the Claimant attended with representation and participated, and neither he nor his representative sought a further report at the hearing. Further reports or an additional adjournment were not adjustments within sections 4A and 18B of the Disability Discrimination Act 1995 on these facts.

4. The Tribunal was also entitled to reject the discrimination claim. The Claimant had not established that a non-disabled actual or hypothetical comparator with materially the same characteristics would have received more favourable treatment.

5. For wrongful dismissal, the Tribunal had used the range-of-reasonable-responses language in part of its reasoning. The correct contractual question was whether there had been a repudiatory breach, as explained in Buckland v Bournemouth University, [2010] EWCA Civ 121. That error was immaterial: the findings established gross misconduct. The knowing, prolonged failure to register while continuing in a leadership role, and the failure to disclose it, justified summary dismissal.

• Employment Appeal Tribunal: Appeal dismissed. The Tribunal upheld the dismissal of all claims.
• Employment Tribunal at Birmingham: Decision sent to the parties on 27 April 2011. Claims for disability discrimination, unfair dismissal and breach of contract were dismissed.