London Underground Ltd v O'Sullivan

A proposed reasonable adjustment must be assessed objectively by its practical capacity to prevent the disabled employee’s substantial disadvantage. The employer’s process of reasoning, or its reasons for not making the adjustment, does not answer that question.

Where dismissal is the disadvantage, a temporary work-shadowing arrangement need not be shown to restore the employee immediately to every former duty. It must, however, give rise to a real prospect of putting the employee sufficiently on the road to recovery that retention with a view to return to suitable work is reasonable.

An error in the reasonable-adjustment analysis does not necessarily invalidate a separate finding of unfair dismissal where that finding is independently supported by procedural unfairness and a failure genuinely to consider an available alternative.

The deceased employee, a station supervisor whose work was largely safety-critical, was absent with clinical depression and could not perform safety-critical duties. Following a period in a redeployment unit, he was dismissed on capability grounds. At the final meeting, his representative proposed that he shadow a customer service assistant for four weeks.

The Employment Tribunal upheld claims for failure to make reasonable adjustments under the Disability Discrimination Act 1995 and unfair dismissal. It found that the proposed shadowing would have prevented the disadvantage of dismissal. London Underground appealed.

The central issue was whether the Tribunal had correctly assessed whether the four-week shadowing arrangement would prevent the substantial disadvantage caused by the employer’s dismissal practice.

1. Appeal allowed in part. The appeal against the reasonable-adjustment finding was allowed and that issue was remitted to the same Employment Tribunal. The appeal against the finding of unfair dismissal was dismissed.

2. The critical statutory question under section 4A of the Disability Discrimination Act 1995 was whether the proposed adjustment would prevent the practice, criterion or procedure from placing the employee at the substantial disadvantage of dismissal. The inquiry is objective and concerns the practical result of the proposed measure. It does not concern whether the employer gave the proposal proper consideration or had good reasons for rejecting it.

3. The Tribunal had stated the prevention test but had not asked the required question. A four-week shadowing period would not be a reasonable adjustment merely because it postponed dismissal or gave the employee an opportunity to prove himself. The Tribunal had to determine whether it gave a real prospect that he would be sufficiently on the road to recovery for it to be reasonable to retain him with a view to return to work, either as a station supervisor or in the customer service assistant role.

4. The employer’s submission that the employee had to be fit for safety-critical duties at the end of four weeks put the test too high. The question was whether the prospect of recovery and retention justified the temporary step. The issue was remitted for reconsideration on submissions, without further evidence.

5. The unfair-dismissal finding stood independently. Even if the shadowing arrangement did not meet the statutory reasonable-adjustment test, the Tribunal was entitled to find procedural unfairness in the manager’s failure genuinely to consider the late proposal, her prejudgment of dismissal, and the appeal officer’s approach. Remedy, including the application of the Polkey principle, remained for the Tribunal.

• Employment Appeal Tribunal: Allowed the employer’s appeal against the reasonable-adjustment finding and remitted that liability issue to the same Tribunal. Dismissed the appeal against the finding of unfair dismissal.
• Employment Tribunal, London (Central): In reasons promulgated on 10 May 2013, upheld claims for failure to make reasonable adjustments under the Disability Discrimination Act 1995 and unfair dismissal.