Sinclair v Coventry & Warwickshire Partnership NHS Trust

In a reasonable-adjustments claim, the tribunal must identify the alleged provision, criterion or practice, or the auxiliary aid relied on, and determine whether it caused a substantial comparative disadvantage. It must then decide whether there was a reasonable step capable of avoiding that disadvantage.

The assessment is objective. A tribunal may find no substantial disadvantage where the evidence does not show that the employer knew, or ought reasonably to have known, of the relevant impairment and resulting disadvantage. Detailed findings that the employee did not communicate the asserted health-related difficulty may support that conclusion.

An employer is not ordinarily required to displace another employee or create a post unsupported by business need as a reasonable adjustment.

The claimant, a community psychiatric nurse, brought complaints of disability discrimination and detriment for making a protected disclosure against her NHS employer. The Employment Tribunal sitting in Birmingham dismissed all complaints in written reasons sent on 11 July 2012.

The claimant appealed on three permitted grounds. She contended that the Tribunal had not followed the approach in Environment Agency v Rowan, had applied a subjective rather than objective test when considering reasonable adjustments, and had failed properly to address constructive knowledge under Schedule 8 to the Equality Act 2010.

The central issue was whether the Tribunal’s findings concerning the alleged adjustments, comparative substantial disadvantage, and the employer’s knowledge disclosed an error of law.

1. Appeal dismissed. The Employment Tribunal made extensive findings open to it on the evidence. Its conclusions disclosed no error of law.

2. The Tribunal had correctly applied the approach in Environment Agency v Rowan [2008] IRLR 20. It identified the pleaded provision, criterion or practice and the alleged auxiliary aid, considered comparative substantial disadvantage, and addressed whether a reasonable adjustment was required. Its conclusion that a redeployment policy would not have required the employer to remove an existing employee or create an unjustified post was open to it.

3. The findings on breaks, a private or quieter office, additional training and an alternative headset were sustainable. The claimant had not shown a relevant substantial disadvantage in comparison with non-disabled colleagues. In several respects, the evidence also supported findings that the asserted adjustment was not reasonable, or that the proposal had not been pleaded.

4. The Tribunal had not applied a subjective test. Read fairly and as a whole, its detailed factual findings and reasoning showed that it had assessed the reasonable-adjustments issues objectively.

5. On the statutory knowledge defence in Schedule 8 Part 3 paragraph 20 of the Equality Act 2010, the Tribunal had applied the correct question: the extent of the employer’s knowledge of disability and substantial disadvantage. There was ample material for its finding that the employer had neither actual nor constructive knowledge of impairments concerning concentration or memory, or of the alleged resulting disadvantages, during the relevant period.

6. The Court of Appeal decision in Secretary of State for Work and Pensions v MIND [2013] EWCA Civ 1565 did not assist on these facts.

• Employment Appeal Tribunal: dismissed the claimant’s appeal from the Employment Tribunal.
• Employment Tribunal, Birmingham: dismissed the claimant’s complaints of disability discrimination and protected-disclosure detriment in reasons sent on 11 July 2012.