Perratt v The City of Cardiff Council

For a reasonable-adjustments claim, the tribunal must ask whether a provision, criterion or practice places the disabled person at a substantial disadvantage compared with non-disabled persons subject to it. The duty may arise where the practice bites harder on the disabled person.

A claim that an employer should obtain further medical evidence is not itself a proposed adjustment. It is a means of identifying possible adjustments.

Unfair dismissal is not parasitic on disability-discrimination claims. The statutory tests are distinct: a discriminatory dismissal may be fair, and a non-discriminatory dismissal may be unfair. The unfair-dismissal claim must therefore be determined independently under section 98 of the Employment Rights Act 1996.

The Claimant, a recruitment adviser employed by the council, was disabled and had substantial periods of sickness absence. Following capability procedures, the council dismissed her because it considered that she was unlikely to become fit for work in the foreseeable future.

The Employment Tribunal dismissed claims under section 15 and sections 20 and 21 of the Equality Act 2010, and dismissed the unfair-dismissal claim on the basis that it was parasitic on the discrimination claims. Its reasonable-adjustments analysis followed the earlier Employment Appeal Tribunal decision in Griffiths.

After the Tribunal's decision, the Court of Appeal held that the relevant comparator approach in Griffiths was wrong. The central issues were which findings were affected by that error and whether unfair dismissal required independent consideration.

1. Appeal allowed. The claims concerning permission to tape-record meetings, redeployment as a reasonable adjustment, discrimination arising from disability under section 15, and unfair dismissal were remitted to the same Employment Tribunal.

2. The Court of Appeal decision in Griffiths v Secretary of State for Work and Pensions [2016] IRLR 216 required the Tribunal to apply the correct section 20 comparison. The question is whether the relevant provision, criterion or practice puts the disabled claimant at a substantial disadvantage compared with non-disabled persons also subject to it. A duty to make adjustments may arise where the practice bites harder on the disabled employee. Although that analysis in Griffiths was technically obiter, it was authoritative and had to be followed.

3. The incorrect comparator could not have affected the determinations concerning the printer, home working, supervisory support or workload. The printer and home-working claims were also out of time, and the other proposed steps were not reasonable adjustments on the Tribunal's unchallenged findings. The request for further medical information was not an adjustment but a means of identifying possible adjustments.

4. The error may have affected the refusal to allow tape-recording and the refusal to redeploy the Claimant. Those issues had been rejected because the Tribunal had used the incorrect comparator. They required reconsideration. Since the proportionality of dismissal under section 15 could depend on whether redeployment should have been provided as a reasonable adjustment, that claim was also vitiated and had to be reconsidered.

5. The unfair-dismissal claim was wrongly treated as dependent on the discrimination claims. Section 98 of the Employment Rights Act 1996 requires a separate inquiry. A dismissal for a discriminatory reason is not necessarily unfair, so the claim was remitted for determination on its merits.

• Employment Appeal Tribunal: Allowed the appeal and remitted specified reasonable-adjustments, section 15 and unfair-dismissal issues to the same Employment Tribunal.
• Employment Tribunal, Cardiff: By a decision dated 5 August 2015, dismissed claims under section 15 and sections 20 and 21 of the Equality Act 2010 and the unfair-dismissal claim.