Muzi-Mabaso v HM Revenue & Customs (Disability Discrimination)

For indirect discrimination under Equality Act 2010 section 19, proportionality requires an objective balance between the discriminatory impact of the PCP and the employer’s reasonable needs. A tribunal must assess less discriminatory alternatives; an employer’s reasons for adopting a generally used recruitment method do not alone establish justification.

For reasonable adjustments, the inquiry is objective and focused on the practical effect of a proposed adjustment upon the disabled person’s substantial disadvantage. A failure to obtain further information or conduct an assessment is not itself a failure to make an adjustment. The tribunal must nevertheless scrutinise the individual adjustment proposed, rather than treating its conclusion on general PCP justification as determinative.

The Claimant, who had depression and stress, challenged two PCPs imposed by his employer: placement in a redeployment pool and a requirement to complete an online test in a July 2012 recruitment exercise for higher-grade posts.

The Bristol Employment Tribunal dismissed claims for indirect disability discrimination under section 19 and for failure to make reasonable adjustments under sections 20 and 21 of the Equality Act 2010. It also awarded the Respondent £5,000 costs. The Claimant appealed. The Respondent cross-appealed the finding that the online-test PCP caused group disadvantage.

The central issues were whether the Tribunal had correctly addressed disadvantage, justification, reasonable adjustments and costs.

1. Appeal allowed in part; cross-appeal dismissed. The Tribunal permissibly found that the Claimant suffered no disadvantage from membership of the redeployment pool, given the case advanced below and his acceptance that the pool treated him more favourably than being outside it. That finding also defeated the reasonable-adjustments claim concerning that PCP.

2. The Respondent’s cross-appeal against group disadvantage from the online-test PCP failed. Read as a whole, the Tribunal’s reasoning showed that its use of “might” reflected the statutory hypothetical inquiry under section 19(2)(b), rather than application of a lower test.

3. The Tribunal’s finding that the Claimant was not at a substantial disadvantage for section 20(3) purposes was inadequately reasoned and appeared to require incapacity or inability to take the test. Evidence which it accepted as establishing particular disadvantage could also demonstrate disability-related lack of confidence and desire to take the test. The appeal succeeded on that issue.

4. Further medical information, consultation and assessment are not themselves reasonable adjustments. The statutory inquiry is whether an objectively reasonable practical adjustment would avoid or ameliorate the identified disadvantage. Alternative formats for a test could not be reasonable on the Tribunal’s unchallenged finding that the Claimant would not undertake a test in any form.

5. The Tribunal’s section 19 justification reasoning was insufficient. It identified legitimate aims in an objective and fair sift of nearly 5,000 candidates, but did not demonstrate the required balance between those needs and the PCP’s discriminatory impact. Its reasoning also did not sufficiently examine whether allowing the Claimant to progress without the test, or slotting him into a vacancy, was a reasonable adjustment in his individual circumstances.

6. The costs award could not stand because it depended upon liability conclusions that had been set aside. The proper disposal of the substantive appeal was left for further written representations.

• Employment Appeal Tribunal: appeal allowed in part, cross-appeal dismissed and the costs award set aside: [2015] UKEAT 0353_14_1311.
• Bristol Employment Tribunal: dismissed the disability-discrimination claims and awarded the Respondent costs on 27 November 2013. No citation was stated.