Kingsmoor Packaging Ltd v Fytche

An Employment Tribunal must determine each pleaded discrimination claim by reference to its distinct statutory ingredients and make sufficient findings of fact and reasons. A finding of direct disability discrimination requires findings of less favourable treatment and a comparator.

In assessing justification and reasonable adjustments, a Tribunal must not substitute its non-expert assessment for clear medical advice about the safety of work involving machinery. It must identify the precise adjustment said to be reasonable, explain why it is reasonable, and consider the period for which it could have enabled the employee to work.

The employee, who had epilepsy, brought claims for direct and indirect disability discrimination, failure to make reasonable adjustments, and discrimination arising from disability under the Equality Act 2010. He had been unable to agree a return to work involving the employer's shift arrangements and machinery.

The Employment Tribunal, in a judgment sent on 13 August 2015, found that the employer had discriminated against him and awarded £35,417.85. The employer appealed liability and remedy. The employee cross-appealed the refusal to add a Simmons v Castle uplift. The central issue was whether the Tribunal had made sustainable findings on the separate elements of the four claims.

1. Appeal allowed. The Tribunal's finding of direct disability discrimination was set aside. Although it was the only finding in the operative part of the judgment, the Reasons also stated that every claim succeeded. Those findings were also set aside.

2. A claim under section 13 requires less favourable treatment of the claimant compared with an actual or hypothetical comparator. The Tribunal made no finding of less favourable treatment, comparator or disability stereotyping. Its conclusion of direct discrimination was therefore unsupported.

3. The Tribunal was entitled to find that the employer had not justified its rotating-shift PCP. It erred, however, in finding that a PCP requiring operation of machinery was unjustified. The medical evidence clearly advised that the employee should not operate or be near machinery. The Tribunal could not, on its own non-expert assessment, treat guarded machinery as safe and disregard that advice.

4. The reasonable-adjustments analysis was inadequate. A Tribunal must specify the adjustment held to be reasonable and explain why. The proposed adjustment of work without machinery was impermissibly vague. It was also necessary to consider whether, and for what periods, an adjustment to shifts or hours would have enabled the employee to undertake work rather than merely attend it. The same deficiencies affected the section 15 claim.

5. All four claims were remitted for rehearing before a differently constituted Employment Tribunal. The remedy appeal and cross-appeal consequently fell away. The employee was ordered to pay £1,200 costs of the appeal under section 34A of the Employment Appeal Tribunal Rules 1993.

• Employment Appeal Tribunal: Allowed the employer's appeal, set aside the liability findings and remitted all four claims for rehearing before a differently constituted Employment Tribunal.
• Employment Tribunal: Judgment sent on 13 August 2015 found disability discrimination and awarded £35,417.85.