Islam v Abertawe Bro Morgannwg Local Health Board

An employer may justify preventing a disabled employee from performing a role where this is a proportionate means of protecting patients. The justification may rest on clinical deficiencies reasonably regarded as creating a risk, where those deficiencies are not shown to arise from the disability.

The duty to make reasonable adjustments does not require adjustments which would address disability-related disadvantages but would not overcome separate deficiencies that independently prevent the employee performing the role.

An Employment Tribunal may consider a claim within the pleaded issues even if it was not pursued at the hearing. Procedural fairness nevertheless requires clear notice and a proper opportunity for submissions and, if appropriate, further evidence before deciding it.

Dr Islam, a consultant psychiatrist employed by the Trust, had been assessed by the National Clinical Assessment Service. Its report identified communication and clinical deficiencies and recommended remediation. A programme was not implemented. The Trust later offered him a supervised sub-consultant post and, after he declined it, gave contractual notice.

Dr Islam was diagnosed with Asperger’s Syndrome, accepted to be a disability. He contended that the Trust’s refusal to permit his return as a consultant was discrimination under sections 15 and 20–21 of the Equality Act 2010. The Cardiff Employment Tribunal dismissed those claims but upheld an unpaid-wages claim under section 13 of the Employment Rights Act 1996.

Dr Islam appealed the discrimination decision. The Trust cross-appealed the wages award. The central issues were whether exclusion from consultant practice was justified and whether the Tribunal had fairly determined a claim not pursued at the hearing.

1. Appeal dismissed; cross-appeal allowed. The Employment Tribunal made findings open to it on the evidence and made no error of law in dismissing the disability-discrimination claims.
2. For section 15 of the Equality Act 2010, the Tribunal was entitled to accept that Asperger’s Syndrome caused communication difficulties which contributed to the adverse treatment. It was nevertheless entitled to find that exclusion from consultant practice was a proportionate means of achieving the legitimate aim of protecting patients. The Trust reasonably regarded the identified clinical deficiencies as a potential risk to patients and had no basis for treating those deficiencies as disability-related.
3. For sections 20 and 21, the Tribunal could accept that the requirement to perform the consultant role without the identified deficiencies was a PCP, and that disability-related communication difficulties caused a disadvantage. The proposed adjustments could not reasonably be required because they would not address the separate clinical deficiencies. Those deficiencies independently prevented Dr Islam from working as a consultant.
4. The suggestion that he should be transferred to a more senior post, notwithstanding Archibald v Fife Council, had not been put forward or identified before the Tribunal. Its omission from the Tribunal’s consideration could not therefore amount to an error of law.
5. The wages claim fell within the ET1 and list of issues, so the Tribunal could consider it despite Dr Islam not pursuing it at the hearing. However, it acted unfairly by deciding the merits without making clear that it intended to do so and without giving the Trust a fair opportunity for full submissions and potentially further evidence.
6. The section 13 wages claim was remitted to the same Employment Tribunal for fresh determination on the merits. Apart from the specified findings concerning the medical certificate and wages, the Tribunal’s findings of fact stood.

• Employment Appeal Tribunal: Dr Islam’s appeal against dismissal of his disability-discrimination claims was dismissed. The Trust’s cross-appeal against the section 13 Employment Rights Act 1996 award was allowed and the wages claim remitted.
• Cardiff Employment Tribunal: Judgment sent to the parties on 10 January 2013 after a nine-day hearing. It dismissed the outstanding unfair-dismissal and disability-discrimination claims, but found the Trust liable for unlawful deduction of wages under section 13 of the Employment Rights Act 1996.