Northumberland Tyne & Wear NHS Foundation Trust v Geoghegan

An Employment Tribunal determining a reasonable-adjustments claim must identify the employer’s provision, criterion or practice, the relevant non-disabled comparators, the resulting substantial disadvantage, and the concrete step or steps which it was reasonable to require. A consultation, assessment or internal procedure is not itself ordinarily such a step.

A tribunal must also give reasons which resolve the material elements of a protected-disclosure detriment claim. An overall conclusion cannot replace findings on the alleged disclosures, detriments and causal grounds. Where its reasoning on knowledge of disability is not date-specific, and material findings affecting credibility are perverse, its conclusions cannot stand.

The claimant, a consultant child and adolescent psychiatrist, was disabled by recurrent depressive disorder and attention deficit hyperactivity disorder. She alleged that the Trust failed to make reasonable adjustments under the Disability Discrimination Act 1995 and subjected her to detriments for making protected disclosures under the Employment Rights Act 1996.

The Employment Tribunal at Newcastle upheld both claims in a judgment dated 4 October 2012. The Trust appealed. It challenged the Tribunal’s findings on its knowledge of disability, reasonable adjustments, protected disclosures, detriments, time limits and perversity.

The central questions were whether the Tribunal had made sustainable and sufficiently reasoned findings on the statutory elements of those claims, and whether factual errors had materially affected its assessment of the witnesses.

1. Appeal allowed. The Tribunal’s conclusions on reasonable adjustments, protected disclosures and time could not stand. The claims were remitted for a complete rehearing before a freshly constituted Tribunal.

2. The Tribunal had to determine the date on which the Trust acquired actual or constructive knowledge of the claimant’s disability. Its general conclusion that the Trust knew or ought to have known was inadequate. It failed to address the conceded date of actual knowledge and relied upon matters which could not have been known at the relevant earlier date, including a mistaken reading of an occupational-health letter.

3. For the reasonable-adjustments claim, the Tribunal needed to identify the relevant PCP, the non-disabled comparators, the nature and extent of the substantial disadvantage, and the specific reasonable step which would avoid it. It instead recast the pleaded case by treating non-application of policies as a PCP and their application as the adjustment. It did not make practical findings about the alleged demands of work, the required reductions, or why the adjustments already agreed were insufficient.

4. The statutory duty concerns concrete steps to prevent disadvantage. It does not ordinarily extend to a process of consultation or assessment which might later lead to steps. Delay in producing a stress assessment was therefore not, without more, a breach of the duty.

5. The Tribunal’s protected-disclosure conclusions were impermissibly omnibus. It did not explain how it resolved disputed issues concerning whether particular communications met the statutory requirements, whether specific acts were detriments, and whether they were done on the ground of protected disclosures. Some alleged treatment pre-dated the first pleaded disclosure. Material findings concerning senior managers were also affected by perverse factual findings.

6. Strong language was not itself an appeal ground. However, it required careful scrutiny of the actual findings and reasoning. The Tribunal’s mistaken findings had materially affected its credibility assessment. Applying the remittal criteria, the only proper course was a fresh hearing, with the new Tribunal making its own assessment of the evidence.

• Employment Appeal Tribunal: Allowed the Trust’s appeal and remitted the claims for a complete rehearing before a fresh Tribunal: [2014] UKEAT 0048_13_2901.
• Employment Tribunal, Newcastle: Upheld the claimant’s reasonable-adjustments and protected-disclosure detriment claims in a judgment dated 4 October 2012.