Newham Sixth Form College v Sanders

A tribunal determining a reasonable-adjustments claim under section 4A of the Disability Discrimination Act 1995 must apply the statutory test in a structured and objective way. It must identify the relevant provision, criterion or practice, any appropriate non-disabled comparator, and the nature and extent of the claimant’s substantial disadvantage. It must then assess the practical effect of proposed measures and whether they would reasonably prevent that disadvantage.

The employer’s thought process, attitude, good practice, or reasons for not making an adjustment are not the legal test. The tribunal must also determine the employer’s knowledge both of the disability and of the likely effect of the provision, criterion or practice on the disabled person.

The claimant, an A-level tutor with depression, alleged that the college had failed to make reasonable adjustments to two attendance-related requirements: regular attendance at 8.45 am and compliance with absence and lateness reporting procedures.

The Employment Tribunal upheld the reasonable-adjustments claims but dismissed the disability-related dismissal claim. It later made a remedy award of £216,108.92. The college appealed the liability decision. The claimant was debarred from participating in the appeal.

The central issue was whether the Tribunal had applied the statutory test for reasonable adjustments and determined the issues it had identified, particularly the employer’s knowledge and the claimant’s substantial disadvantage.

1. Appeal allowed. The Employment Tribunal’s liability judgment was set aside because it had not applied the structured statutory approach to a claim under section 4A of the Disability Discrimination Act 1995.
2. The inquiry is objective. The Tribunal had wrongly concentrated on the college’s state of mind, its alleged closed-mindedness, and whether its officers had acted as a good or prudent employer. The relevant question was the practical effect of measures which might reasonably have been taken to prevent the substantial disadvantage caused by the identified provisions, criteria or practices.
3. Following Environment Agency v Rowan and Royal Bank of Scotland v Ashton, the Tribunal had to identify the relevant provision, criterion or practice, any appropriate non-disabled comparator, and the nature and extent of the claimant’s substantial disadvantage. It did not make the required findings as to the disadvantage, whether it was substantial, or whether each proposed adjustment, alone or in combination, would prevent it.
4. The Tribunal also failed to decide the knowledge issue under section 4A(3)(b). A finding that the employer knew, or should have known, that the claimant was disabled did not determine whether it knew that she was likely to be affected by the relevant provision, criterion or practice in the statutory manner.
5. The case was remitted for a rehearing before a freshly constituted Employment Tribunal. The original Tribunal’s substantial adverse criticisms of the college’s principal witnesses made a fresh tribunal appropriate. The consequential remedy judgment depended upon the set-aside liability judgment and was also set aside.

• Employment Appeal Tribunal: Allowed the college’s appeal, set aside the Employment Tribunal’s liability and consequential remedy judgments, and remitted the reasonable-adjustments claims to a freshly constituted Tribunal: [2013] UKEAT 610_12_207.
• Employment Tribunal, East London Hearing Centre: In reasons sent on 11 September 2012, upheld the claimant’s reasonable-adjustments claims and dismissed her disability-related dismissal claim. A later remedy judgment, dated 19 June 2013, awarded £216,108.92; it was set aside consequentially by the Employment Appeal Tribunal.