Dominique v Toll Global Forwarding Ltd

A reasonable-adjustment duty is not confined to preventing dismissal. It may require an adjustment which prevents a disabled employee being subjected to a substantial disadvantage or other detriment, even where the adjustment would not alter a redundancy-dismissal outcome.

Under the Equality Act 2010, there is no statutory rule requiring reasonable-adjustment issues to be decided before justification of indirect discrimination or discrimination arising from disability. However, where an unmade reasonable adjustment could have prevented the relevant disadvantage, that failure must be considered in the proportionality balance. A tribunal which omits it errs in law.

The Claimant, a long-serving employee who had suffered a stroke, was selected for redundancy following a scoring exercise. The Employment Tribunal found that productivity and accuracy criteria placed him at a substantial disadvantage because of disability. It found that a one-point uplift in his scores would have been a reasonable adjustment, but held that it was not required because it would not have prevented his dismissal.

The Tribunal dismissed claims for unfair dismissal, direct discrimination, indirect discrimination, discrimination arising from disability and failure to make reasonable adjustments. The Claimant appealed. The central issue was whether the reasonable-adjustment duty, and its relevance to justification, extended beyond avoiding dismissal.

1. Appeal allowed in part and remitted. The Employment Tribunal's rejection of the direct-discrimination ground and its approach to the scope of the pleaded reasonable-adjustment issues disclosed no error of law. Its conclusions that the relevant productivity and accuracy criteria, and the scoring process, were justified were also adequately explained on the findings made.
2. Direct discrimination requires less favourable treatment because of disability itself. A score which reflects the effects of an employee's disability does not, without more, establish that a comparable non-disabled person with the same relevant characteristics would have been treated more favourably. The Tribunal was entitled to find that the scoring evidence did not establish that proposition.
3. The Tribunal was entitled to confine the adjustment inquiry to the criteria which it found caused substantial disadvantage. The Claimant had not identified a broader adjustment during the process, and the agreed issues did not fairly raise replacement of the entire matrix or general guidance and training for scorers.
4. The Tribunal nevertheless erred in treating avoidance of dismissal as the sole discriminatory effect which a reasonable adjustment had to prevent. The pleaded claim also concerned the substantial disadvantage, detriment and hurt feelings caused by use of unadjusted criteria. A one-point adjustment could therefore have been reasonable even though it would not have prevented dismissal.
5. The Equality Act 2010 contains no equivalent of the former statutory rule in section 3A(6) of the Disability Discrimination Act 1995, and does not require reasonable-adjustment issues to be addressed before justification. But where an unmade adjustment is linked to the disadvantage relied upon for indirect discrimination or discrimination arising from disability, the failure must form part of the justification balance. In practical terms, a disadvantage which could have been prevented by a reasonable adjustment may be difficult to justify.
6. The case was remitted to the same Tribunal solely to determine justification on the footing that there had been a failure to make the reasonable adjustment in respect of the two criteria, although that failure did not cause the dismissal, and to determine any resulting compensation.

• Employment Appeal Tribunal — allowed the appeal on a limited justification and reasonable-adjustments issue, and remitted that issue and any compensation to the same Tribunal.
• Employment Tribunal — dismissed the Claimant's unfair-dismissal and disability-discrimination claims in a judgment promulgated on 15 March 2013.