Howorth v North Lancashire Teaching Primary Care Trust

The duty to make reasonable adjustments under the Disability Discrimination Act 1995 is objective. An employer does not breach it merely because it failed actively to consider the duty. The question is whether reasonable steps could and should have been taken to remove the substantial disadvantage.

A tribunal must identify the relevant disadvantage and determine whether a proposed adjustment would have a practical prospect of alleviating it. It must decide that issue at liability stage. A failure to make adjustments does not of itself render a dismissal unfair; fairness remains governed by the range of reasonable responses.

The claimant, a health visitor, was summarily dismissed after convictions for theft, dangerous driving and battery arising from conduct which was accepted to have been involuntary and connected with mental incapacity. The Employment Tribunal dismissed her unfair-dismissal claim but upheld a claim under the Disability Discrimination Act 1995, finding that the Trust had failed to consider reasonable adjustments. It later rejected every adjustment advanced by the claimant at the remedies hearing.

The claimant also unsuccessfully challenged the Trust's later refusal of her application for another health visitor post under the Equality Act 2010. The Trust appealed the reasonable-adjustments finding. The claimant appealed the dismissal, the human-rights issues, and the recruitment decision.

1. The Trust's appeal was allowed and the claimant's appeal was dismissed. The Employment Tribunal erred by treating the employer's failure actively to consider its reasonable-adjustments duty as a breach. Under sections 3A(2) and 4A of the Disability Discrimination Act 1995, the inquiry is objective: whether reasonable steps ought to have been taken. An employer may comply fortuitously, and an employer's reasoning process is not itself the statutory subject of the duty. The Tribunal had found that the Trust considered alternatives to dismissal, but wrongly excluded that consideration because it was not expressed as consideration of the statutory duty. [2011] ICR 632 applied.

2. The Tribunal also erred by finding a breach without identifying an adjustment that could practically have kept the claimant in employment. It had to determine the relevant disadvantage, the proposed adjustment, and whether the adjustment had a prospect of preventing the disadvantage. It could not defer that liability issue to remedies and then make a liability finding after rejecting every proposed adjustment as unreasonable.

3. The EAT exercised its power under section 35 of the Employment Tribunals Act 1996 and substituted a decision that the Trust was not in breach of the reasonable-adjustments duty. No remittal was necessary.

4. The dismissal remained fair. The employer was entitled to rely on the claimant's convictions and was not required to investigate the legal background to her guilty pleas. The Tribunal had considered mitigation, redeployment, risk and the claimant's circumstances, and permissibly concluded that dismissal fell within the range of reasonable responses under section 98(4) of the Employment Rights Act 1996.

5. The claimant's Article 8 argument added nothing. The range-of-reasonable-responses test was compatible with the proportionality analysis relied on. The Tribunal also made no error in rejecting the recruitment claims: disapplying the enhanced-disclosure requirement was not shown to be a reasonable adjustment, and the burden did not require the Trust to justify an adjustment which had not been shown to be apparently reasonable.

• Employment Appeal Tribunal: The Trust's appeal against the reasonable-adjustments liability finding was allowed. The claimant's appeals against the dismissal and recruitment decisions were dismissed. The EAT substituted a finding of no breach of the Disability Discrimination Act 1995.
• Employment Tribunal, Manchester: The Tribunal dismissed the unfair-dismissal and recruitment claims, found a failure to make reasonable adjustments in relation to dismissal, and subsequently rejected all proposed adjustments at the remedies hearing.