Secretary of State for Work and Pensions (Jobcentre Plus) v Higgins

For a duty to make reasonable adjustments, a tribunal must identify the employer’s provision, criterion or practice, the relevant comparison, the substantial disadvantage caused, and the adjustment or adjustments said to be reasonable. The proposed step must be assessed by reference to how, and to what extent, it would avoid that disadvantage. A tribunal need not apply a comprehensive checklist of factors.

The fairness of a capability dismissal is a separate question. The tribunal must apply section 98(4) of the Employment Rights Act 1996 and ask whether the employer acted reasonably in treating the reason as sufficient, considering the dismissal process as a whole.

Mr Higgins, a disabled administrative officer employed by Jobcentre Plus, had been absent for a prolonged period because of heart disease and chronic obstructive pulmonary disease. He proposed a phased return on reduced hours. Jobcentre Plus offered a 13-week part-time medical grounds plan, but its decision-maker’s letter did not expressly provide for review or extension.

Mr Higgins was dismissed after declining to return on the stated terms. The Employment Tribunal upheld claims for failure to make reasonable adjustments and unfair dismissal. Jobcentre Plus appealed, challenging the tribunal’s identification of the provision, criterion or practice, its application of the statutory adjustment test, and its approach to fairness under section 98(4).

1. Appeal allowed and case remitted. The Employment Tribunal’s decision could not stand. The matter was remitted for a rehearing afresh.
2. For a claim under Equality Act 2010, section 20(3), the tribunal must identify the employer’s PCP, the persons without the disability against whom comparison is made, the nature and extent of the substantial disadvantage, and the step or steps which it was reasonable for the employer to take to avoid that disadvantage. These elements should not be elided. The PCP must cause the disadvantage. Here, the relevant PCP was the requirement to work the contractual hours, rather than a general requirement to work or the 13-week rehabilitation period, which was itself a potential adjustment.
3. The PCP need not have been enforced before the duty arose. The requirement to work contractual hours underlay the discussions about a phased return, and the duty potentially arose when Jobcentre Plus received the fit note. However, the tribunal had failed to identify the disadvantage and assess whether, and to what extent, the proposed review provision would have avoided it. The statutory test concerns the reasonable step required to avoid a particular disadvantage, not simply whether an offer was reasonable. There is no obligation to work through every factor in the statutory Code of Practice.
4. The unfair-dismissal finding was also legally flawed. Whether the dismissal was fair required a separate application of Employment Rights Act 1996, section 98(4). The tribunal had to assess whether the decision-maker was reasonable in treating the employee’s failure to return under the plan as sufficient reason for dismissal, applying the range of reasonable responses test and considering the process as a whole, including the appeal. A breach of the duty to make adjustments did not automatically make the dismissal unfair.
5. On remission, the tribunal was to make its own findings and conclusions. The question whether the plan should have expressly provided for review was logically separate from whether dismissal was reasonable. Any Polkey assessment was to be based on the chance that a fair procedure would have produced a different outcome.

• Employment Appeal Tribunal: allowed the appeal against the Employment Tribunal judgment dated 22 August 2012 and remitted the claims for reconsideration afresh.