General Dynamics Information Technology Ltd v Carranza

For a reasonable-adjustments claim under section 20(3) of the Equality Act 2010, the tribunal must identify the relevant PCP, the non-disabled comparators, the substantial disadvantage, and a practical step capable of avoiding it. A mental process or an employer's reasoning is not itself a statutory step.

Leniency towards short disability-related absences does not, without more, require an employer to disregard an earlier final written warning. In considering the fairness of a dismissal, an employer may ordinarily rely on a final warning. It need revisit that warning only in limited circumstances, including bad faith, absence of prima facie grounds, or manifest inappropriateness.

The claimant, who had a disability arising from stomach adhesions, was dismissed following a lengthy absence for a non-disabling shoulder injury. He had previously received a carefully reasoned final written warning after substantial sickness absence, much of it disability-related.

The Employment Tribunal upheld, by majority, a reasonable-adjustments claim. It held that the employer should have disregarded the final warning. It also found the dismissal procedurally unfair, principally because the employer had not reviewed that warning. The employer appealed on points of law.

The central issues were whether disregarding the warning was a reasonable adjustment and whether a reasonable employer had to reopen it when deciding dismissal.

1. Appeal allowed. The findings of disability discrimination and unfair dismissal were set aside.

2. The Employment Tribunal was entitled to identify the PCP as a requirement for consistent attendance. Unlike the attendance procedures considered in earlier authorities, that PCP identified the underlying feature causing the claimant's disadvantage. The comparator and substantial disadvantage could therefore be established.

3. However, the majority had not identified a practical step required by section 20(3) of the Equality Act 2010. Disregarding a final written warning was a mental process, not a practical action to avoid disadvantage. The majority had impermissibly focused on the employer's reasoning rather than the practical result of a proposed adjustment.

4. In any event, the employer's decision not to dismiss after two short later disability-related absences did not make it reasonable to require it to disregard all earlier disability-related absence or the final warning. It had neither revoked the warning nor promised to ignore it. The reasonable-adjustments claim could therefore not stand.

5. The principles concerning final warnings in Davies v Sandwell MBC applied equally to formal sickness procedures. Subject to limited circumstances, an employer may proceed on the basis of an earlier final warning and need not reopen it. The warning here was carefully reasoned, made in good faith, supported by prima facie grounds, and was not manifestly inappropriate. The Employment Tribunal erred by finding that a reasonable employer had to discount or review it.

6. Only one result was reasonably possible on a correct direction of law. The employer was entitled to give the warning full effect and to dismiss after the subsequent substantial absence and occupational-health evidence of continuing attendance difficulties.

• Employment Appeal Tribunal: Allowed the employer's appeal and set aside the Employment Tribunal's findings of disability discrimination and unfair dismissal.
• Employment Tribunal, London (South): By judgment dated 30 October 2013, upheld the disability-discrimination claim by majority and the unfair-dismissal claim, expressed as unanimous.