Ministry of Defence v Cummins (Disability Discrimination: Reasonable adjustments)

An Employment Tribunal determining a reasonable-adjustments claim must identify the proposed steps and decide whether they were reasonable steps for the employer to take. A failure to consider, address or respond to an adjustment request does not itself establish a breach. The statutory duty concerns what it was reasonable to do in fact.

The Tribunal must also identify any reasonable timescale for action and make findings necessary to determine limitation. Where a pleaded issue concerns dismissal under section 39, it must be determined if the facts necessary to engage it are established.

The Claimant, a civilian administrative employee of the Ministry of Defence, had health conditions and requested that specified duties be removed and reallocated to reduce her workload. The Employment Tribunal dismissed her unfair-dismissal and protected-disclosure complaints, but upheld her complaint that the Ministry had failed to make reasonable adjustments.

The Ministry appealed that finding. The Claimant cross-appealed, contending that the Tribunal had failed to consider whether her resignation engaged dismissal provisions in section 39 of the Equality Act 2010. The central issues were whether the Tribunal had properly assessed the reasonableness and timing of the requested adjustments, limitation, and the unresolved section 39 issue.

1. Both appeals were allowed. The finding that the Ministry had breached its duty to make reasonable adjustments was set aside and remitted to the same Employment Tribunal.

2. The Tribunal had identified the Claimant's requested reallocation of duties, but made no proper finding on whether those adjustments were reasonable steps for the Ministry to take. That inquiry was required by section 20 of the Equality Act 2010. The Tribunal had not engaged with evidence that the proposed changes would leave insufficient work for the Claimant's grade.

3. The Tribunal also erred by treating the Ministry's failure to deal with, consider or address the request as itself a failure to make reasonable adjustments. The duty is to do what is reasonably required. Compliance does not depend on the quality of the employer's deliberative process, and consultation does not excuse a failure to take steps that are in fact reasonable.

4. The Tribunal had to identify the reasonable timescale for taking any required action. It also had to make findings relevant to limitation, including when the Claimant disengaged from, or abandoned, the adjustment process and whether any duty to take steps remained after that point.

5. The Tribunal had not considered the Claimant's pleaded section 39 issue. It was remitted for determination, but it arose only if the Tribunal first found a breach of the reasonable-adjustments duty. The case was remitted to the same Tribunal because a rehearing before a new Tribunal would be disproportionate.

• Employment Appeal Tribunal: Both appeals allowed. The reasonable-adjustments finding and the unresolved section 39 issue were remitted to the same Employment Tribunal.
• Employment Tribunal: By a judgment sent on 7 May 2014, dismissed the Claimant's unfair-dismissal and protected-disclosure complaints, but found a breach of the duty to make reasonable adjustments.