Rodriguez-Noza v Abertawe Bro Morgannwg University Health Board

An employment tribunal determining a reasonable-adjustments claim must make clear findings on the relevant provision, criterion or practice, the substantial disadvantage it caused a disabled worker compared with non-disabled persons, the steps taken by the employer, and whether those steps were reasonable. A conclusion that reasonable adjustments were made cannot stand where the tribunal’s reasons do not identify those matters sufficiently to permit appellate review.

A response obtained through the Burns/Barke procedure may clarify or supplement reasons, but it cannot be treated as an impermissible alteration where it explains the tribunal’s original reasoning. Where the deficiencies remain material after clarification, fairness may require remission to a differently constituted tribunal.

The claimant, a staff nurse, brought claims of race discrimination, disability discrimination and constructive unfair dismissal following periods of absence for work-related stress and depression and her subsequent resignation. The Employment Tribunal dismissed all claims.

Only two disability-discrimination issues proceeded in the Employment Appeal Tribunal: whether the Tribunal had properly determined when the claimant became disabled, and whether it had adequately dealt with the alleged failure to make reasonable adjustments under section 4A(1) of the Disability Discrimination Act 1995.

The Employment Judge’s answers to questions from the Employment Appeal Tribunal clarified that the Tribunal had found the claimant disabled only from May or June 2008, and that it had intended to decide that the employer had discharged a duty to make reasonable adjustments.

1. Appeal allowed. The appeal against dismissal of the disability-discrimination claim was allowed and that claim was remitted for a fresh hearing before a differently constituted Employment Tribunal.

2. The finding that the claimant was disabled only from May or June 2008 was reasonably open to the Tribunal. Its subsequent explanation showed that it had investigated the position rather than merely accepting the employer’s concession. The discrepancy between May and June 2008 was immaterial.

3. The Tribunal had identified a relevant provision, criterion or practice: the requirement that the claimant return to work. Its later answer properly clarified that the Tribunal had intended to find that a duty to take reasonable steps had arisen. That clarification did not impermissibly exceed the Burns/Barke procedure.

4. However, the Tribunal failed to identify the substantial disadvantage caused by that requirement when compared with persons who were not disabled. It also failed to make sufficiently clear findings about the actual steps taken after disability arose. Regular health reviews, continuation of employment without pay, and encouragement of counselling did not themselves explain what steps had been taken to facilitate a return to work. The Tribunal did not address clearly the asserted need for increased support and professional supervision.

5. Nor did the Tribunal give reasons enabling the Employment Appeal Tribunal to assess why any identified steps were reasonable. Those omissions made its dismissal of the reasonable-adjustments claim unsafe.

6. A further request for clarification was inappropriate after two unsuccessful attempts to obtain adequate reasons. The fresh Tribunal was not bound by the earlier findings, including the finding on the date when disability began, and could receive relevant evidence from both parties.

• Employment Appeal Tribunal: Allowed the appeal concerning disability discrimination and remitted that claim for a fresh hearing before a differently constituted tribunal.
• Employment Tribunal: Dismissed the claimant’s race-discrimination, disability-discrimination and constructive-unfair-dismissal claims following a five-day hearing in November 2010.