Perratt v The City of Cardiff Council

The duty to make reasonable adjustments under Equality Act 2010 s.20 arises by comparing the disabled person with non-disabled persons who are subject to the same provision, criterion or practice (PCP), not by reference to a Malcolm-style comparator.

The Court of Appeal's analysis in [2016] IRLR 216 must be followed when assessing whether a PCP "bites harder" on a disabled person.

Claims of unfair dismissal must be assessed independently under the tests in Employment Rights Act 1996 s.98; a discriminatory reason for dismissal does not automatically make the dismissal unfair.

The appellant was dismissed after a period of long sickness absence. She brought claims under Equality Act 2010 s.15 (discrimination arising from disability) and s.20/21 (failure to make reasonable adjustments), and for unfair dismissal. The Employment Tribunal in Cardiff dismissed all claims on 5 August 2015. The Court of Appeal later decided [2016] IRLR 216 (Griffiths), altering the correct comparator under the reasonable adjustments duty. The appellant appealed to the EAT seeking remittal of issues affected by that change and reconsideration of the unfair dismissal claim on its merits.

The central questions were (1) whether parts of the Tribunal's decision on reasonable adjustments were vitiated by applying the wrong comparator, and (2) whether the unfair dismissal claim required independent consideration under s.98 of the Employment Rights Act 1996.

1. Disposition. The appeal is allowed in part. Issues affected by the Court of Appeal's decision in [2016] IRLR 216 (Griffiths) are remitted to the same Employment Tribunal for rehearing.
2. Reasonable adjustments (s.20). The correct comparator asks whether the PCP puts the disabled claimant at a substantial disadvantage compared with non-disabled persons who are subject to the same PCP. The Tribunal erred where it used a Malcolm-style comparator and that error may have been material. Issues so affected (including the ability to tape-record meetings and the question of redeployment) must be reconsidered applying the Griffiths approach (see paras [20]–[26]; [32]; [35]–[36]).
3. Matters unaffected by Griffiths. Several adjustment claims were either time-barred or were properly rejected on fact (e.g. provision of a named support person; home working; workload reallocation). Those findings remain unimpeached and need not be revisited (see paras [27]–[31]; [34]).
4. Interaction with Section 15. The Tribunal's dismissal of the s.15 claim was tainted by the same errors on reasonable adjustments, and that claim is therefore remitted for reconsideration by the same Tribunal (see paras [37]–[40]).
5. Unfair dismissal. The Employment Tribunal was wrong to treat the unfair dismissal claim as merely parasitic on the discrimination claims. The statutory tests in Employment Rights Act 1996 s.98 are distinct and were not considered. A dismissal for a discriminatory reason is not automatically unfair. The unfair dismissal claim is remitted for independent reconsideration under s.98 (see paras [41]–[44]).
6. Practical orders. Remit to the original Employment Tribunal to reconsider the specified adjustment issues and the unfair dismissal claim in light of this judgment.

• Employment Appeal Tribunal: this appeal from the Employment Tribunal in Cardiff; decision given 28 June 2016 (this judgment).
• Employment Tribunal, Cardiff: decision dismissing discrimination and unfair dismissal claims dated 5 August 2015; remitted to that Tribunal for reconsideration on specified issues.