General Dynamics Information Technology Ltd v Carranza

For a reasonable-adjustments claim concerning dismissal for absence, the tribunal must identify the provision, criterion or practice, the relevant non-disabled comparators, the substantial disadvantage, and the practical step said to be reasonable. A tribunal cannot substitute criticism of the employer’s reasoning for identification of such a step. Disregarding a final written warning is not shown to be a reasonable adjustment merely because the employer previously showed leniency towards disability-related absence.

In an unfair-dismissal claim, an employer may rely on an earlier final written warning unless it was issued in bad faith, lacked prima facie grounds, or was manifestly inappropriate. The tribunal should not re-open the warning outside those limited circumstances.

Mr Carranza, a disabled employee with a history of substantial absence, was dismissed by General Dynamics Information Technology Ltd after a further lengthy absence. The Employment Tribunal found, by a majority, that the employer had failed to make reasonable adjustments because it had not disregarded disability-related absence reflected in an earlier final written warning. It unanimously found the dismissal procedurally unfair because the warning had not been reviewed.

The employer appealed on points of law. The central issues were whether the requirement of consistent attendance was a provision, criterion or practice causing substantial disadvantage, whether disregarding the warning was a reasonable step under section 20(3) of the Equality Act 2010, and whether the warning had to be revisited when assessing fairness under section 98(4).

1. Appeal allowed. The findings of disability discrimination and unfair dismissal were set aside.
2. The majority of the Employment Tribunal was entitled to identify the provision, criterion or practice as a basic requirement of consistent attendance at work. The relevant disadvantage was sufficiently connected with the employee’s ability to fulfil his contractual role, since the attendance difficulty exposed him to dismissal. The analysis in Royal Bank of Scotland v Ashton and Griffiths v Secretary of State for Work and Pensions did not require the same result, because those cases concerned procedures already modified to alleviate disability disadvantage.
3. Under section 20(3) of the Equality Act 2010, the tribunal must identify the practical step said to avoid the disadvantage. The majority failed to do so adequately. Its proposed step appeared to be disregarding the final written warning, but the reasoning concentrated on the employer’s mental process rather than a practical measure. In any event, earlier leniency towards two relatively short absences supplied no sustainable basis for requiring the employer to disregard all earlier disability-related absence.
4. The case was in substance concerned with making allowances for disability. The judgment observed that it would have been more naturally analysed under section 15 of the Equality Act 2010, although that claim was not advanced. Consistent attendance was a legitimate aim and the dismissal following the further substantial absence was plainly proportionate on the facts described.
5. For unfair dismissal, the guidance in Davies v Sandwell MBC applied beyond misconduct dismissals to formal procedures for other types of dismissal. An employer need not re-open a final warning unless it was issued in bad faith, without prima facie grounds, or was manifestly inappropriate. The warning here was carefully reasoned and none of those exceptional circumstances existed. The Tribunal therefore erred by treating the employer’s failure to review or discount it as procedural unfairness.
6. Only one outcome was reasonably possible on a correct direction. The substantial absence, together with occupational-health advice that the attendance pattern was likely to continue, entitled the employer to dismiss.

• Employment Appeal Tribunal: allowed the employer’s appeal and set aside the Employment Tribunal’s findings of disability discrimination and unfair dismissal.
• Employment Tribunal: upheld the claims. The reasonable-adjustments finding was by a majority; the unfair-dismissal finding was expressed as unanimous, although one stated basis depended on the majority discrimination finding.