Abertawe Bro Morgannwg University Local Health Board v Morgan

A reasonable-adjustments claim requires the tribunal to identify an adjustment that would probably avoid the substantial disadvantage caused by the employer’s provision, criterion or practice. A finding that failure to redeploy affected the employee’s health does not answer that question.

Where medical evidence states that an employee is currently unfit for any work, an employer’s refusal to permit an immediate return to an alternative role does not amount to unfavourable treatment under section 15. Harassment by creation of a prohibited environment ordinarily requires an ongoing state of affairs, not merely a short-lived reaction during a single meeting. A just-and-equitable extension of time must address, separately for each claim, why it was late and why it was not brought sooner.

The claimant, a psychiatric nurse therapist with a disabling depressive illness, was dismissed on capability grounds after sickness absence. The Employment Tribunal dismissed her unfair-dismissal and disability-related discrimination claims under the Disability Discrimination Act 1995, but upheld claims under the Equality Act 2010 for discrimination arising from disability, failure to make reasonable adjustments and harassment. It also extended time for all claims.

The employer appealed the findings favourable to the claimant. The central issue was whether the Tribunal had misconstrued occupational-health evidence about her fitness for work, and whether its findings on reasonable adjustments, harassment and extension of time could stand.

1. Appeal allowed except as to the underlying finding concerning Laura Keighan. The finding of discrimination arising from disability under section 15 was reversed. The Tribunal had materially misconstrued the occupational-health report of 15 August 2011. It stated that the claimant was then unfit for any work, and would be supported to return to the alternative post only if her health improved. Since she could not then perform the post, refusing an immediate return caused no detriment. The suggested rehabilitative arrangements did not make her immediately fit.

2. The reasonable-adjustments finding after August 2011 was reversed for the same reason. For April to August 2011, the Tribunal had correctly identified the PCP as the requirement to attend the usual post. In context, both the comparison with non-disabled employees and the substantial disadvantage were self-evident. It could also find that a large employer was likely to have redeployment opportunities and could not rely on its own failure to identify one.

3. However, the Tribunal never answered its own necessary question: whether a redeployment adjustment would have alleviated the substantial disadvantage. General advice that alternative work might be suitable did not identify the features required for a role to be workable. A finding that delayed redeployment affected health was not a finding that redeployment would have avoided the PCP disadvantage. That issue was remitted for the April-to-August period.

4. The harassment finding concerning Wendy Anthony was remitted. A single accusatory remark could be unwanted conduct, but the Tribunal had not shown that it created the prohibited environment beyond an immediate, short-lived reaction at the meeting. By contrast, conduct which virtually ignored a grievance over time could create such an environment. The finding concerning Laura Keighan disclosed no error of law, subject to the time issue.

5. The extension-of-time decision was set aside and remitted. Although the just-and-equitable discretion is wide and the Keeble checklist is not statutory, the Tribunal had to consider each discrete claim separately. It had not addressed why the claimant missed the primary time limit or why she did not claim sooner. Its assessment of the merits was also undermined by the successful appeal grounds. No further evidence was required on remission.

• Employment Appeal Tribunal: Allowed the employer’s appeal except for the underlying harassment finding concerning Laura Keighan, subject to limitation. It reversed the section 15 finding and the post-August 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 Disability Discrimination Act 1995 claims, but upheld claims under the Equality Act 2010 and extended time.