Abertawe Bro Morgannwg University v Local Health Board & Anor

A reasonable-adjustments claim requires identification of a proposed adjustment capable of avoiding the substantial disadvantage caused by the provision, criterion or practice. A finding that delay in redeployment adversely affected an employee's health does not answer that question. Where medical evidence shows that the employee was unfit for any work, proposed adjustments to an alternative role cannot establish detriment or a failure to make adjustments.

For harassment, an offensive environment ordinarily denotes an ongoing state of affairs, not merely a short-lived reaction during a single meeting. An extension of time on just and equitable grounds must address each discrete complaint and the reasons for both missing the primary limit and delaying thereafter.

The claimant, a psychiatric nurse therapist with a depressive illness amounting to a disability, brought claims under the Equality Act 2010. The Employment Tribunal dismissed her unfair-dismissal and disability-related discrimination claims under earlier legislation, but upheld claims for discrimination arising from disability, failure to make reasonable adjustments, and harassment. It also extended time for all claims.

The employer appealed the findings in the claimant's favour. The principal issues were whether the Tribunal had misunderstood occupational-health evidence concerning the claimant's fitness for work, whether redeployment was shown to have avoided the disadvantage caused by the PCP, whether two incidents created the statutory harassment environment, and whether time had properly been extended.

1. Appeal allowed in substantial part and remitted. The Tribunal had materially misread the occupational-health letter of August 2011. The doctor stated that the claimant was then unfit for any work and would support a return to the alternative placement only if her psychological condition improved. Adjustments to the placement were not advice that she could immediately work there.

2. The finding of discrimination arising from disability under section 15 was therefore reversed. A refusal to permit a return to the alternative role could not be unfavourable treatment causing detriment when the claimant was medically unable to undertake it. The reasonable-adjustments finding after August 2011 was also reversed for the same reason.

3. For April to July 2011, the PCP was attendance in the claimant's usual post. The comparison and the substantial disadvantage were sufficiently self-evident in context. However, the Tribunal identified only a general possibility of redeployment in accordance with occupational-health advice. It did not find that a suitable alternative role, consistently with the claimant's condition, would probably have avoided the substantial disadvantage. Its finding that delayed redeployment had affected her health did not establish that essential matter. That issue was remitted without further evidence.

4. The harassment finding concerning the manager's October 2008 remark was remitted. A single accusatory remark was capable of unwanted conduct, but the Tribunal had not shown that it applied the requirement that the proscribed environment be more than an immediate and short-lived reaction. The harassment finding concerning the HR adviser was not erroneous, subject to the limitation issue: conduct that reasonably conveys that a seriously depressed employee's condition is unimportant can create a humiliating and offensive environment.

5. The extension of time was set aside and remitted for every claim separately. The Tribunal had to consider why each primary limit was missed, why the claim was not then brought sooner, and the balance of prejudice without relying on an erroneous view that all claims were well founded.

• Employment Appeal Tribunal: Allowed the employer's appeal in substantial part, reversed the section 15 finding and the post-August 2011 reasonable-adjustments finding, and remitted the remaining adjustment, harassment and limitation issues.
• Employment Tribunal, Cardiff: For reasons sent on 28 March 2013, dismissed unfair-dismissal and certain disability-discrimination claims, but upheld claims under sections 15, 20, 26 and 40 of the Equality Act 2010 and extended time.