Swissport Ltd v Taylor

Under the Disability Discrimination Act 1995, the duty to make reasonable adjustments is objective. The tribunal must identify the relevant provision, criterion or practice, the substantial comparative disadvantage it causes, and whether a proposed practical step would reasonably prevent that disadvantage. An employer's consideration process is not itself decisive, although its evidence may assist the tribunal in evaluating the proposed adjustment.

A change of location and duties may be a reasonable adjustment without the need for a fixed date for a phased return to the employee's former role. A tribunal may not determine an unpleaded, unargued head of direct-discrimination claim without analysing its essential elements.

The claimant, a flight dispatcher, had substantial mobility restrictions after an accident at work and a prolonged absence. He proposed home working on the advance preparation of staff flight rosters. The Employment Tribunal found unfair dismissal, a failure to make reasonable adjustments, and direct disability discrimination in the dismissal.

Swissport did not appeal the unfair-dismissal finding. It appealed the adjustments finding, contending that the Tribunal had focused wrongly on its decision-making process rather than the practical efficacy of the adjustment. It also contended that direct discrimination in dismissal had neither been pleaded nor pursued. The central issues were whether home working on advance rosters was a reasonable adjustment and whether the Tribunal could determine the unpleaded direct-discrimination allegation.

1. The appeal was dismissed as to reasonable adjustments and allowed as to direct disability discrimination. The remedies order was upheld, so the separate appeal against it was dismissed.

2. The statutory inquiry under sections 3A(2), 4A and 18B of the Disability Discrimination Act 1995 is objective. It concerns the practical effect of a proposed adjustment in preventing a substantial comparative disadvantage. An employer does not discharge the duty merely by considering adjustments, and a deficient consideration process does not itself establish breach.

3. Read as a whole, the Tribunal had nevertheless applied that test. It identified the provision, criterion or practice as working at the airport; found that the claimant's restricted mobility put him at a substantial disadvantage; and found that home working on advance roster preparation would prevent it. It was entitled to confine the adjustment to advance rosters, for which live security-sensitive information was unnecessary. Its references to Swissport's inadequate consideration of the option formed part of its objective evaluation of practicality and did not disclose a misdirection.

4. The absence of a fixed fitness date did not preclude that adjustment. The claimant had been assessed for fitness as a flight dispatcher, rather than for home-based advance rostering. The evidence did not establish permanent unfitness for all work. The phased-return authorities were materially different because this adjustment changed both location and tasks.

5. The Tribunal's finding of direct disability discrimination in the dismissal was erroneous. That head of claim was not pleaded or argued, the parties had no opportunity to address it, and the Tribunal gave no analysis of the reason for any less favourable treatment. The finding was set aside.

• Employment Appeal Tribunal: allowed Swissport's appeal against the finding of direct disability discrimination, but dismissed its appeal against the reasonable-adjustments finding and upheld the remedies order.
• London South Employment Tribunal: judgment sent to the parties on 4 October 2011. It upheld complaints of unfair dismissal and disability discrimination; its remedies judgment was sent on 25 January 2012.