Vodafone Ltd v Winfield

Under section 123(1) of the Equality Act 2010, the just-and-equitable test gives the Employment Tribunal a broad discretion. It is not a reasonable-practicability test and does not require a prescribed sequence or checklist. The tribunal may weigh the claimant’s health, work-related stress, reasonable pursuit of an internal grievance and the employer’s handling of it, together with prejudice caused by delay.

A failure to make reasonable adjustments does not automatically establish unfair dismissal. The tribunal must separately apply the reasonableness test under section 98(4) of the Employment Rights Act 1996. It may nevertheless find dismissal unfair where the employer’s adjustments were insufficient and dismissal was premature or procedurally flawed.

The Employment Tribunal at Birmingham upheld two complaints that Vodafone Ltd had failed to make reasonable adjustments for Mr Winfield’s disability, and a complaint of unfair dismissal. It extended time for the adjustment complaints under section 123(1) of the Equality Act 2010.

Vodafone appealed. It contended that the Tribunal had inadequately analysed whether it was just and equitable to extend time, and had treated the adjustment findings as determinative of unfair dismissal rather than separately applying section 98(4) of the Employment Rights Act 1996. It also alleged perversity concerning the adjustment to the claimant’s performance target.

1. Appeal dismissed. The Employment Tribunal made no error of law in extending time for either reasonable-adjustment complaint under section 123(1) of the Equality Act 2010.
2. The statutory question was broad: whether a late claim had been brought within such further period as was just and equitable. The Tribunal was not required to apply the three-stage analysis advanced by the employer, nor to use the approach applicable to reasonable-practicability tests. It had sufficiently addressed the material considerations, including the claimant’s declining health, stress caused by performance management, use of the grievance procedure, the employer’s unsatisfactory handling of that grievance, and the limited evidential prejudice to the employer.
3. The Tribunal was entitled to treat pursuit of an internal grievance as relevant. Its weight depends on the circumstances. A claimant may unreasonably persist with internal procedures after their usefulness has ended, but a claimant may also make rational use of a process intended to achieve conciliation or settlement. Section 123(1) does not require identical treatment of those situations.
4. The Tribunal did not treat the failure to make reasonable adjustments as automatically deciding unfair dismissal. It separately considered the statutory standard of reasonableness under section 98(4) of the Employment Rights Act 1996. Its conclusion was open to it because the adjustment allowing calls affected by hypoglycaemia to be marked was insufficient, a 90 per cent target adjustment was required, and there were further procedural failings and prematurity.
5. The Employment Appeal Tribunal’s jurisdiction was confined to errors of law. The reasons were adequate and the employer had not established perversity.

• Employment Appeal Tribunal: Vodafone’s appeal was dismissed: [2016] UKEAT 0016_16_2504.
• Employment Tribunal, Birmingham: By a judgment dated 27 April 2015, the Tribunal upheld two reasonable-adjustment complaints and the claimant’s unfair-dismissal complaint. It extended time for the adjustment complaints.