Howorth v North Lancashire Teaching Primary Care Trust

The duty to make reasonable adjustments is assessed objectively. An employer does not breach the duty merely because it failed actively to consider it. Unconsidered compliance is sufficient if objectively reasonable steps were taken.

An Employment Tribunal must identify the relevant disadvantage and assess the proposed adjustment, including its practical prospect of removing that disadvantage. It cannot find a breach without identifying an adjustment that could realistically have kept the employee in work.

A disability-adjustments finding does not of itself make a dismissal unfair. Fairness remains governed by the range of reasonable responses under section 98(4) of the Employment Rights Act 1996.

The claimant, a health visitor, was summarily dismissed after criminal convictions arising from conduct which her employer accepted had been involuntary and connected with mental incapacity. The Employment Tribunal dismissed her unfair-dismissal claim but upheld a claim that the Trust had failed to consider reasonable adjustments under the Disability Discrimination Act 1995.

The Tribunal later considered the adjustments at a remedies hearing and rejected each of them. It also dismissed claims arising from the Trust's later refusal to appoint the claimant to another health-visitor post.

The Trust appealed the reasonable-adjustments finding. The claimant appealed the dismissal, human-rights and recruitment findings. The central issue was whether a failure actively to consider reasonable adjustments was itself a breach, despite the absence of an adjustment capable of practical success.

1. The Trust's appeal was allowed and the claimant's appeal was dismissed. The Employment Tribunal's finding that the Trust had breached its duty to make reasonable adjustments was set aside. The EAT exercised its power under section 35 of the Employment Tribunals Act 1996 and determined that no breach had occurred; no remission was required.

2. The Tribunal erred by treating active consideration of the statutory duty as necessary to compliance. The inquiry under sections 3A(2), 4A and 18B of the Disability Discrimination Act 1995 is objective. It concerns whether reasonable steps were in fact taken to avoid the substantial disadvantage, rather than the employer's reasoning process or awareness of its duty. Tarbuck v Sainsbury's Supermarkets Ltd and Royal Bank of Scotland v Ashton supported that conclusion.

3. The Tribunal also erred by finding a breach without identifying any adjustment that would have had a practical effect in keeping the claimant in employment. It had postponed consideration of the proposed adjustments until remedies, where it rejected them all. It had not evaluated their prospects of success. Those omissions were material errors of law.

4. The claimant's dismissal was nevertheless fairly held to fall within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996. The employer could rely on the convictions and assess the risk of recurrence. It was not required to reopen the criminal facts or investigate the legal basis of guilty pleas. The Tribunal had considered mitigation, redeployment and retention in the existing role.

5. There was no conflict between the domestic unfair-dismissal test and the proportionality requirement in Article 8(2) of the European Convention on Human Rights. The claimant's recruitment claims also failed. The Tribunal was entitled to find that disapplying the enhanced-disclosure requirement was not a reasonable adjustment and that rejection of the application was justified.

• Employment Appeal Tribunal: allowed the Trust's appeal against the liability finding on reasonable adjustments, dismissed the claimant's appeals against the liability and remedies decisions, and substituted a finding that the Trust was not in breach of the reasonable-adjustments duty.
• Employment Tribunal, Manchester: in a liability judgment sent on 11 March 2013, dismissed the unfair-dismissal and recruitment claims but upheld a claim for failure to make reasonable adjustments. In a remedies judgment sent on 14 May 2013, it rejected the adjustments advanced by the claimant.