Newham Sixth Form College v Sanders

An employment tribunal deciding whether an employer failed to make reasonable adjustments must identify the relevant provision, criterion or practice and the nature and extent of the substantial disadvantage suffered by the disabled employee.

The assessment is objective and concerns the practical effect of the proposed adjustment. The employer’s reasoning process or attitude is irrelevant. The disadvantage, the employer’s knowledge and the reasonableness of an adjustment are interrelated. An adjustment must be tailored to the disadvantage; one which is excessive or inadequate is not reasonable.

A disabled college tutor was dismissed following persistent lateness and failures to use the employer’s telephone reporting procedure. She alleged that the attendance and reporting requirements placed her at a substantial disadvantage because of depression and that the college had failed to make reasonable adjustments under the Disability Discrimination Act 1995.

The Employment Tribunal upheld the claim and later awarded £216,108.92. On the employer’s appeal, the Employment Appeal Tribunal set aside both judgments because the tribunal had not properly identified the extent of the disadvantage, the employer’s knowledge of it or the objective reasonableness of the suggested adjustments. The employee appealed to the Court of Appeal. The central issue was whether the tribunal’s reasoning adequately connected the proposed adjustments to the nature and extent of her disadvantage.

1. Appeal dismissed. The Employment Appeal Tribunal had correctly set aside the liability judgment. The claim was remitted to a differently constituted Employment Tribunal ([23], [28]–[30]).

2. The stepped approach stated in Environment Agency v Rowan [2008] ICR 218 and RBS v Ashton [2011] ICR 632 was correct. A tribunal must identify the relevant provision, criterion or practice and the nature and extent of the substantial disadvantage which it creates. Without those findings, it cannot determine whether the employer failed to make reasonable adjustments ([8]–[12]).

3. The nature and extent of the disadvantage, the employer’s knowledge and the reasonableness of the proposed adjustment necessarily run together. Reasonableness must be assessed objectively by reference to practical results. An adjustment must be tailored to the identified disadvantage. An excessive or inadequate measure will not be reasonable ([14]).

4. The Employment Tribunal had not investigated the extent of the employee’s difficulties in complying with either the attendance requirement or the telephone reporting procedure. Nor had it distinctly found what the employer knew about their extent. It treated the proposed arrangements as reasonable largely because they could have been implemented, without explaining why they were apt to address the particular disadvantage ([15]).

5. The tribunal also relied on the employer’s allegedly closed and negative attitude. That was the error identified in Ashton: the employer’s thought processes in considering an adjustment are irrelevant to the objective statutory question. The deficiencies concerned a central question and could not properly be cured by requesting further reasons ([15], [22]).

6. The employer’s notice concerning the remedies judgment was moot. The application for a protective costs order was refused because it was made far too late and there was no denial of access to justice ([25], [27]).

1. Court of Appeal (Civil Division): The employee’s appeal was dismissed in [2014] EWCA Civ 734. The Employment Appeal Tribunal’s setting aside of the liability and remedies judgments was upheld, and the claim was remitted to a differently constituted Employment Tribunal.

2. Employment Appeal Tribunal: On 2 July 2013, the employer’s appeal was allowed. The Employment Tribunal’s liability and remedies judgments were set aside because the tribunal had not properly applied the required approach to reasonable adjustments.

3. Employment Tribunal: The liability judgment, sent to the parties on 11 September 2012, found a failure to make reasonable adjustments contrary to the Disability Discrimination Act 1995. A subsequent remedies judgment awarded the employee £216,108.92.