Secretary of State for Justice v Prospere

An Employment Tribunal must identify with certainty the provision, criterion or practice (PCP) relied on and determine the claim by reference to that PCP. It errs if it substitutes a materially different PCP from that identified as an issue.

For claims under section 15 and section 20 of the Equality Act 2010, the tribunal must conduct and explain a critical evaluation of the competing considerations. It must make findings on the discriminatory effect, the employer’s needs, and the consequences of the proposed measures. A conclusion on proportionality or reasonable adjustments cannot stand where the necessary factual findings and balancing reasoning are absent.

The claimant, an employee with deep vein thrombosis, had disability-related absences managed under the respondent’s Management Attendance Policy. She was invited to attendance review meetings, at which a warning was possible. Although some absence was later reclassified as disability leave and no warning was issued, she brought claims for discrimination arising from disability and failure to make reasonable adjustments.

The Employment Tribunal upheld both claims. It treated the relevant PCP as a practice of arranging an attendance review meeting without first holding a case conference. The Secretary of State appealed, contending that this differed from the PCP identified in the agreed list of issues and that the Tribunal had not properly assessed justification or reasonableness.

1. Appeal allowed. The Employment Tribunal erred by determining the claims by reference to a PCP different from that identified in the list of issues. The identified PCP concerned treating disability-related absence no differently from other sickness absence under the Management Attendance Policy. The PCP ultimately adopted concerned the timing of a disability assessment before progression to an attendance review meeting. That was a materially different issue.

2. Certainty as to the PCP is essential. Under section 15 of the Equality Act 2010, the tribunal must assess whether the treatment produced by applying that PCP is a proportionate means of achieving a legitimate aim. Under section 20, the reasonable steps required depend upon the particular PCP applied and the substantial disadvantage it creates.

3. The Tribunal also failed to carry out and explain the required balancing exercise. It accepted that managing attendance consistently was a legitimate aim, but made no sufficient findings about the employer’s evidence on the practical consequences and costs of an alternative procedure. It neither set out the relevant considerations on each side nor explained the basis on which an earlier meeting would not impair the legitimate aim.

4. Hardy & Hansons plc v Lax and Aster Communities Ltd v Akerman-Livingstone require a critical evaluation of proportionality and reasonableness. Such an evaluation must be demonstrated in the tribunal’s findings and reasoning; an appellate court cannot perform it where the material factual findings are absent.

5. The case was remitted to a differently constituted Employment Tribunal for rehearing.

• Employment Appeal Tribunal: allowed the Secretary of State’s appeal and remitted the case for rehearing: [2015] UKEAT 412_14_3004.
• Employment Tribunal: decision sent to the parties on 19 May 2014 upheld the claimant’s claims for failure to make reasonable adjustments and discrimination arising from disability.