Makuchova v Guoman Hotel Management (UK) Ltd

The Court of Appeal refused permission to appeal against an Employment Appeal Tribunal decision which had dismissed an appeal from an Employment Tribunal. The central legal principle concerned the duty under section 20(3) of the Equality Act 2010 to make reasonable adjustments for a disabled employee, and whether that duty required an employer to find an alternative role when adjustments to the employee's existing role were offered and, on the medical evidence, had a real prospect of enabling a return to the substantive post.

The tribunals below had found that adjustments consisting of regular breaks and trialling changes to the existing job were reasonable and potentially sufficient; the claimant was unwilling to try them. The tribunals distinguished Archibald v Fife Council on the basis that unlike Archibald, the claimant's role in this case was at least potentially capable of adjustment. The Court of Appeal agreed there was no real prospect of establishing an error of law and refused permission to appeal.

Background and parties: The claimant, employed for about ten years in a hotel and restaurant role, developed a degenerative spinal condition in March 2012 which affected her ability to stand and carry heavy items. The respondent employer offered adjustments to the claimant's substantive role, principally breaks after each hour. The claimant sought redeployment to other roles and was dismissed in March 2013. Proceedings were brought for unfair dismissal and for breach of the duty to make reasonable adjustments under section 20(3) of the Equality Act 2010.

Procedural history: The Employment Tribunal (decision promulgated 4 September 2013) found that reasonable adjustments had been offered and could be trialled; it distinguished Archibald v Fife Council because the medical evidence indicated a real prospect that the claimant might be able to return to her existing role with adjustments. The claimant obtained leave to appeal to the Employment Appeal Tribunal, where Singh J heard the appeal on 11 December 2014 and dismissed it for lack of error of law. Permission to bring the appeal to the Court of Appeal was refused on the papers by Vos LJ; the claimant made a renewed oral application to the Court of Appeal which was dismissed by Sales LJ on 14 April 2016.

Issues framed: (i) whether the employer had breached the duty in section 20(3) by failing to offer redeployment or other alternative roles rather than adjustments to the existing role; (ii) whether the Employment Tribunal erred in law in distinguishing Archibald.

Court’s reasoning: The tribunals concluded, on the medical evidence from the occupational physician, that there was a realistic prospect the claimant could manage her substantive role if the proposed adjustments were trialled and further adjusted if necessary. The Employment Tribunal treated the claimant's refusal to attempt the adjustments as a material factor. Archibald was distinguished because that case concerned a role that was simply incapable of adjustment; by contrast, here the role was potentially amenable to reasonable adjustments. The Employment Appeal Tribunal found no error of law in that approach. The Court of Appeal agreed there was no real prospect of success on appeal: the statutory duty under section 20(3) is to make reasonable adjustments to avoid disadvantage and does not extend to requiring an employer to find an alternative role where reasonable adjustments to the existing role can, objectively judged, enable a return.

Remedy: The application for permission to appeal was refused.

Appeal permission refused and application dismissed. The Court of Appeal upheld the Employment Appeal Tribunal's conclusion that there was no error of law: the employer had offered reasonable adjustments to the claimant's existing role which, on the medical evidence, had a real prospect of enabling a return and therefore there was no duty to find an alternative role. The Employment Tribunal was entitled to distinguish Archibald on those factual and legal grounds.