Johnson v Manpower Direct (UK) Limited

The applicant, a disabled security officer, alleged that his employer failed to make reasonable adjustments under section 23 of the Equality Act 2010 by not seeking the client (Barking and Dagenham Borough) to waive a one-year experience requirement or to provide training so he could perform CCTV duties compatible with his disability. The Court of Appeal considered whether the Employment Tribunal should have raised, of its own motion, the possibility that the employer could request the client to dispense with the experience requirement or to provide training.

The court held that although the point was arguable, the Tribunal had found (at paragraph 18) that the client was dissatisfied with the applicant's level of performance and (at paragraph 40) that creating a standalone CCTV role would not be a reasonable adjustment because of lack of relevant background and the client’s dissatisfaction. Those findings made it unrealistic to conclude that approaching the client would have produced a positive result, so there was no realistic prospect of success on appeal.

The applicant was employed by a temporary staff provider and assigned as a security officer to the local authority. His disability prevented him performing patrol work but permitted work as a CCTV operative. The local authority required applicants to have at least one year's experience for CCTV roles; the applicant lacked that experience. When he could no longer perform the patrol duties, the employer had insufficient CCTV cover work and no other suitable roles and therefore ended the assignment.

The applicant claimed the employer breached its duty to make reasonable adjustments under section 23 of the Equality Act 2010 by not seeking the borough's agreement to waive the experience requirement or by not requesting client-provided training.

• Nature of the application: an application for permission to appeal to the Court of Appeal from the Employment Appeal Tribunal, challenging the Tribunal’s approach to reasonable adjustments under section 23.
• Issues framed: (i) whether it was arguable that the employer should have asked the client to dispense with the one-year experience requirement; (ii) whether the employer should have asked the client to provide training to render the applicant suitable for CCTV duties; and (iii) whether the Employment Tribunal ought, of its own motion, to have raised these possibilities.

The Court accepted the point was arguable in general terms but relied on the Tribunal’s factual findings that the client had been dissatisfied with the applicant’s performance and that creating a standalone CCTV post would not have been reasonable given the applicant’s lack of relevant background and the client’s attitude. On that basis the Court concluded it was unrealistic to suppose any approach to the client would have produced a positive response, and that training would not have overcome the practical obstacles. Permission to appeal was therefore refused for want of a realistic prospect of success.

The application for permission to appeal was refused. The court accepted the proposed reasonable adjustment arguments were arguable in abstract, but the Employment Tribunal had made specific factual findings (client dissatisfaction and lack of relevant background) which made it unrealistic to expect the client would waive the experience requirement or provide training; therefore there was no realistic prospect of success.

Application for permission to appeal to the Court of Appeal from a decision of the Employment Appeal Tribunal. The judgment contains no neutral citation for the Employment Appeal Tribunal decision.