North Lancashire Teaching Primary Care NHS Trust v Howorth

The duty to make reasonable adjustments is assessed objectively. An employer does not breach it merely because it failed actively to consider the duty, if it in fact took all steps which it was reasonable to take. Conversely, consultation or consideration alone does not establish compliance.

A tribunal must identify the disadvantage, a proposed adjustment, and why that adjustment could practically alleviate the disadvantage. It must address the adjustment’s prospects of success. It cannot find a breach at liability stage while postponing whether any proposed adjustment was reasonable until remedies.

A breach of the adjustment duty does not of itself make a dismissal unfair. Fairness remains a separate assessment under Employment Rights Act 1996, section 98(4).

The claimant, a health visitor, was summarily dismissed after criminal convictions arising from conduct which the Trust accepted had been involuntary and associated with her mental impairment. An Employment Tribunal dismissed her unfair-dismissal claim but upheld a claim for failure to make reasonable adjustments under the Disability Discrimination Act 1995. At a later remedies hearing it rejected each adjustment advanced by the claimant.

The Trust appealed the liability finding on reasonable adjustments. The claimant cross-appealed the dismissal decision and the rejection of her later application for a health visitor post, which was considered under the Equality Act 2010.

The central issues were whether the adjustment duty required active consideration by the employer, whether the Tribunal had identified a reasonable and effective adjustment, and whether the dismissal and recruitment decisions were lawful.

1. The Trust’s appeal was allowed on the first three grounds and the claimant’s appeal was dismissed. The Tribunal erred in finding a breach solely because the Trust had not actively considered its duty to make reasonable adjustments. The statutory question is objective: whether reasonable steps were taken. The employer’s thought process, knowledge of the duty and consultation are not determinative. That approach followed Tarbuck v Sainsbury’s Supermarkets Ltd [2006] IRLR 664 and Royal Bank of Scotland v Ashton [2011] ICR 632.

2. The Tribunal also erred by finding a breach without identifying an adjustment that could have had a practical effect in retaining the claimant in employment. It had wrongly left the proposed adjustments for the remedies hearing, where it rejected them all. A Tribunal must identify the relevant PCP or feature, the substantial disadvantage, and a reasonable adjustment capable of alleviating it. It must also address the adjustment’s prospect of success. The approach in Environment Agency v Rowan [2008] ICR 218 applied.

3. The unfair-dismissal decision disclosed no error of law. The Trust was entitled to rely on the claimant’s guilty pleas and convictions without investigating their legal background. The Tribunal had considered the risk of recurrence, mitigation, possible redeployment and the circumstances of the conduct. It permissibly concluded that dismissal fell within the range of reasonable responses under Employment Rights Act 1996, section 98(4).

4. There was no conflict between the range-of-reasonable-responses test and the proportionality requirement under article 8(2) of the Convention. Turner v East Midlands Trains Ltd [2013] IRLR 107 resolved that issue. Nor does a breach of the reasonable-adjustments duty necessarily make a dismissal unfair.

5. The recruitment claims also failed. The Tribunal was entitled to find that disapplying the enhanced-disclosure requirement for a clinical role was not a reasonable adjustment. The claimant had not identified an apparently reasonable adjustment requiring the burden to shift, and the Tribunal made a supported positive finding of unreasonableness.

6. Exercising its power under Employment Tribunals Act 1996, section 35, the EAT substituted a decision that the Trust had not breached the duty to make reasonable adjustments. No remission was necessary.

• Employment Appeal Tribunal: Allowed the Trust’s appeal against the reasonable-adjustments liability finding, dismissed the claimant’s appeals, and substituted a finding of no breach of the adjustment duty.
• Employment Tribunal, Manchester: Liability judgment sent on 11 March 2013 dismissed the unfair-dismissal and later recruitment claims, but upheld the reasonable-adjustments claim concerning dismissal. A remedies judgment sent on 14 May 2013 rejected the proposed adjustments.