Johnson v Manpower Direct (UK) Ltd

In a reasonable-adjustment claim, a claimant is not required to identify every possible step an employer might take. A tribunal may consider whether an employer should have explored an adjustment, including by approaching a client about relaxing an employment requirement. However, the employer need not pursue a step where the known circumstances make a positive response unrealistic. Nor is training a reasonable adjustment where it would not overcome an essential lack of experience. The Court of Appeal therefore refused permission to appeal because the proposed adjustments offered no realistic prospect of success.

The applicant was disabled under the Equality Act 2010 and employed by Manpower Direct (UK) Ltd as a security officer assigned to Barking and Dagenham Local Authority. He could no longer perform patrol duties, but CCTV work was compatible with his disability. The authority required at least one year’s experience for CCTV work, which he lacked.

He argued that reasonable adjustments under section 23 required Manpower to ask the authority to waive the experience requirement or provide training. The matter came before the Court of Appeal on an application for permission to appeal from the Employment Appeal Tribunal. The central issue was whether Manpower had acted unreasonably by failing to make either approach.

1. Permission to appeal refused. Lord Justice Elias accepted that it was arguable that a tribunal could raise a possible reasonable adjustment of its own motion. A claimant is not obliged to suggest possible steps that an employer might take, particularly where the claimant was unrepresented and the proposed adjustment appeared critical.
2. The proposed request that the local authority waive its one-year experience requirement nevertheless had no realistic prospect of producing a positive response. The Employment Tribunal had found that the authority was dissatisfied with the applicant’s performance. In those circumstances, it was unrealistic to expect Manpower to ask the authority to dispense with the experience requirement. Failing to make that request was not unreasonable.
3. It was likewise not reasonable to expect Manpower to ask the authority to provide training. Training would not overcome the applicant’s lack of the required experience.
4. The proposed adjustments therefore could not establish a realistic prospect of the appeal succeeding. Permission to appeal was refused.

• Court of Appeal (Civil Division) ([2015] EWCA Civ 1424): Lord Justice Elias refused permission to appeal.
• Employment Appeal Tribunal: the application was brought from this stage; its citation and order are not stated in the judgment.