London Borough Of Hillingdon v Bailey

Where an employer’s managing-attendance policy applies only to sickness absence, the proper comparator for a disabled employee subject to that policy is an employee who is ill, subject to the same policy, but not disabled. A comparison with employees able to attend work is erroneous. If the correct comparison discloses no substantial disadvantage, the duty to make reasonable adjustments under Disability Discrimination Act 1995 section 4A does not arise.

Further, a tribunal may not find a failure to provide a proposed adjustment on a factual basis unsupported by the evidence. Where uncontradicted evidence established that the employer’s offered counselling included one-to-one sessions, there was no breach even if the duty had arisen.

The claimant, a local-authority employee with long-term depression, was managed under the employer’s Managing Attendance Policy while absent through illness. The Employment Tribunal held that the employer had breached its duty to make reasonable adjustments by failing to provide one-to-one counselling. It identified the comparator as non-disabled employees able to attend work and awarded compensation for injury to feelings.

The employer appealed against the liability decision. It contended that the Tribunal had selected the wrong comparator and that the evidence showed that its counselling service did provide one-to-one counselling. The central issues were whether a duty to make adjustments arose and, if so, whether it had been breached.

1. Appeal allowed. The Employment Tribunal erred in identifying the relevant comparator for the application of the Managing Attendance Policy. The policy applied to employees absent through sickness. The proper comparison was therefore between the disabled claimant, who was subject to the policy, and employees who were ill and subject to it but were not disabled.

2. On that comparison, the claimant was not treated differently and suffered no substantial disadvantage. The precondition for the employer’s duty under section 4A(1) of the Disability Discrimination Act 1995 was consequently absent. The Tribunal’s comparison with non-disabled employees able to attend work was legally wrong.

3. Independently, the Tribunal’s finding of breach could not stand. Its sole finding of a failure to make an adjustment was that the employer had refused one-to-one counselling. The uncontradicted evidence showed that the offered CIC service included face-to-face counselling with a suitably matched counsellor, and that one-to-one counselling was available. Neither the pleaded case nor the claimant’s evidence alleged a refusal of such counselling.

4. The letter recording that CIC counselling was unsuitable recorded the claimant’s view, rather than an employer concession that the service was unsuitable. It was not open to the Tribunal to find that one-to-one counselling had been refused. Thus, even if the statutory duty had arisen, there was no breach.

5. As all relevant facts were available and only one conclusion was possible, remittal was unnecessary. The EAT substituted an order dismissing the claim under the Disability Discrimination Act 1995.

• Employment Appeal Tribunal: allowed the employer’s appeal and substituted an order dismissing the claim ([2013] UKEAT 0421_12_2802).
• Watford Employment Tribunal: held that the employer had failed to make a reasonable adjustment by not providing one-to-one counselling, and adjourned the remaining remedy issues.