Aspire Defence Services Ltd v Hutchings

An employment tribunal must give sufficient reasons to identify its primary findings, explain its legal analysis, and show why the statutory tests are met. A finding that treatment arose in consequence of disability cannot stand where the tribunal does not identify the disability-related consequence which caused the treatment or the facts supporting that conclusion.

In a reasonable-adjustments claim, the tribunal must identify the employer's provision, criterion or practice and the substantial disadvantage caused to the disabled person. In assessing unfair dismissal, an employer may take account of an extant written warning even if the later conduct is dissimilar. A dismissal for misconduct need not be for gross misconduct to be fair.

The Employment Tribunal at Havant held that the claimant technician had been unfairly dismissed and subjected to direct disability discrimination, discrimination arising from disability, and a failure to make reasonable adjustments under the Equality Act 2010.

The employer appealed. The claimant accepted that the direct-discrimination finding could not stand because the Tribunal had found that dismissal was for his manner or personality, and accepted defects in the reasonable-adjustments reasoning. The remaining issues were whether the findings of discrimination arising from disability and unfair dismissal could be upheld despite the identified errors.

The central question was whether the Tribunal had made and explained sufficient findings to support those conclusions.

1. Appeal allowed. The direct-discrimination finding was set aside. The findings on reasonable adjustments, discrimination arising from disability and unfair dismissal were remitted for a fresh hearing before a newly constituted Employment Tribunal.

2. The direct-discrimination conclusion could not survive the Tribunal's own finding that the reason for dismissal was the claimant's manner or personality. The reasonable-adjustments conclusion was also defective. The Tribunal had not identified the employer's provision, criterion or practice, nor considered the nature and extent of any substantial disadvantage. That approach failed to follow the guidance in Environment Agency v Rowan, [2008] ICR 218.

3. The finding of discrimination arising from disability under section 15 could not stand. The Tribunal had not identified, through primary findings, which disability-related feature had caused the employer's actions. The alleged causal feature was variously described as an inability to articulate himself, manner or personality, and behaviour. The disciplinary allegations could not simply be treated as communication difficulties without adequate analysis.

4. The unfair-dismissal conclusion was unsustainable. The Tribunal had wrongly assumed that misconduct short of gross misconduct could not justify a fair dismissal. It had also wrongly treated the claimant's extant final written warning as irrelevant because the later conduct was dissimilar. An employer may take account of an earlier written warning in those circumstances.

5. The reasons for both the section 15 and unfair-dismissal findings failed the standard in Meek v City of Birmingham District Council, [1987] IRLR 351. They did not sufficiently explain the factual findings and reasoning needed to show why the claimant had won. Given the Tribunal's fundamentally flawed decision, substitution was inappropriate and remission to the same Tribunal was not suitable.

• Employment Appeal Tribunal: Allowed the employer's appeal, set aside the direct-discrimination finding, and remitted the reasonable-adjustments, discrimination-arising-from-disability and unfair-dismissal issues to a newly constituted Tribunal.
• Employment Tribunal, Havant: Judgment sent to the parties on 13 June 2012. It held that the claimant had been unfairly dismissed and unlawfully discriminated against under sections 13, 15 and 20 of the Equality Act 2010.