Cummins v Ministry Of Defence

An employment tribunal deciding a reasonable-adjustments claim must identify the adjustment sought and determine whether it was a step which it was reasonable for the employer to take. A failure to consider, discuss or respond to a request does not itself establish a breach of the duty under section 20 of the Equality Act 2010. The question is whether the employer failed to do what was reasonably required.

Where delay is relied on, the tribunal must assess the reasonable timescale for taking the relevant steps. It must also determine any material limitation issue. If a pleaded issue under section 39 has not been determined, it should be considered on remission, subject to any necessary finding of a breach of the reasonable-adjustments duty.

The Employment Tribunal dismissed Ms Cummins's claims for unfair dismissal and protected-disclosure detriments, but held that the Ministry of Defence had breached its duty to make reasonable adjustments. It reached that conclusion because it considered that the Ministry had failed to address her request to remove and reallocate substantial parts of her work.

The Ministry appealed the reasonable-adjustments finding. It contended that the Tribunal had not decided whether the requested steps were reasonable, had mistaken a failure to deal with a request for a breach of duty, and had failed to determine reasonable timing and limitation. Ms Cummins's cross-appeal proceeded on the ground that the Tribunal had not considered her section 39 dismissal issue under the Equality Act 2010.

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

2. The Tribunal had to decide whether the particular adjustments sought were steps it was reasonable for the Ministry to take. It had recorded the request and evidence that reallocating the work might leave only a lower-grade role, but made no finding on reasonableness. That omission was material and ground 1 succeeded.

3. The Tribunal also erred by treating the Ministry's failure to deal with, fairly consider, or address the request as itself a failure to make reasonable adjustments. The statutory duty under section 20 of the Equality Act 2010 concerns what it is reasonable to do, not the quality of the employer's consideration process. An employer may comply despite an unconsidered approach; consultation cannot cure a failure to take steps that were reasonably required.

4. In relation to delay, the Tribunal had not identified the reasonable period within which the request should have been dealt with. Nor had it determined when the claimant disengaged from the process for the purpose of the limitation defence. Those were necessary findings. The perversity ground was not determined because notes of evidence were unavailable and remission was required in any event.

5. The Tribunal had made no determination of the pleaded section 39 issue. That issue was remitted for consideration, but arises only if the Tribunal finds a breach of the reasonable-adjustments duty. Remittal to the same Tribunal was proportionate; it could revisit the criticised finding concerning delay after submissions and, if necessary, consideration of the notes of evidence.

• Employment Appeal Tribunal: both cross-appeals allowed. The reasonable-adjustments finding and the unresolved section 39 issue were remitted to the same Employment Tribunal.

• Employment Tribunal: judgment sent to the parties on 7 May 2014. It dismissed the unfair-dismissal and protected-disclosure detriment complaints, but upheld the reasonable-adjustments complaint.