University College London Hospitals NHS Foundation Trust v Thorbourne (Disability Discrimination)

In disability claims, a tribunal must identify the period from which a mental impairment had a substantial and long-term adverse effect, and explain why the statutory long-term test was met at that time. It must also decide when the employer had actual or constructive knowledge of that disability where earlier reasonable-adjustment claims are advanced.

A reasonable-adjustment decision requires a structured analysis of the relevant PCP, the substantial disadvantage, and each step said to be reasonable. A possible adjustment is not itself a step taken. The objective proportionality inquiry for discrimination arising from disability is distinct from the unfair-dismissal test under section 98(4) of the Employment Rights Act 1996.

The Claimant, a medical secretary, was absent from work following a psychotic episode in May 2010. She alleged that workplace conflict, stress, anxiety and depression amounted to a disability, and that the Trust failed to make reasonable adjustments before dismissing her for long-term absence in October 2011.

The Employment Tribunal upheld her unfair-dismissal and disability-discrimination claims. The unfair-dismissal finding was not before the Full Hearing. The Trust appealed the disability findings, challenging the dates of disability and knowledge, the reasonable-adjustment reasoning, and the proportionality assessment for discrimination arising from disability.

1. Appeal allowed in part. The findings that the Claimant had a mental-health disability, and that the Trust knew or ought reasonably to have known of it, by the time dismissal was contemplated from September 2011 were upheld.

2. The Tribunal’s earlier disability finding was insufficiently reasoned. It had to identify the impairment and its effect as at May 2010, and explain why it was then likely to last at least 12 months under Schedule 1 to the Equality Act 2010. The evidence was not all one way, particularly given the Occupational Health prognosis. Its conclusion on disability before September 2011 was therefore set aside.

3. Similarly, the Tribunal was entitled to find the requisite knowledge by the second half of 2011. It gave no clear finding or reasons, however, as to when the Trust acquired actual or constructive knowledge for the earlier period. That issue had to be reconsidered.

4. The PCP findings stood. A PCP identifies the feature causing disadvantage and should not incorporate a proposed partial adjustment. Until another arrangement was actually made, the requirement that the Claimant work in her existing department remained in force.

5. The reasonable-adjustment reasoning was inadequate. The Tribunal had to address each proposed adjustment, identify the reasonable step required, and engage with the Trust’s case that it had sought a meeting about temporary redeployment. A step is not merely a thought process.

6. The Tribunal also erred by relying on its unfair-dismissal reasoning to decide proportionality under section 15 of the Equality Act 2010. The tests differ. It had to determine objectively whether dismissal was a proportionate means of achieving a legitimate aim.

7. The earlier disability and knowledge findings, the reasonable-adjustment findings, and the discrimination-arising-from-disability finding were set aside. Those issues, together with the unfair-dismissal remedy, were remitted to a freshly constituted Employment Tribunal.

• Employment Appeal Tribunal: appeal allowed in part. The disability-discrimination findings specified in the judgment were set aside and remitted to a freshly constituted Employment Tribunal.
• Employment Tribunal, London Central: by a judgment dated 25 April 2014, upheld the Claimant’s complaints of unfair dismissal and disability discrimination. The unfair-dismissal finding was not before the Full Hearing.