Greenslade v Next Distribution Ltd

Detriment in disability discrimination is a broad concept. It may include physical disadvantage, such as an exacerbation of a medical condition, as well as financial loss.

An Employment Tribunal must determine a distinct reasonable-adjustment allegation that is properly advanced. It also must address a dismissal claim under section 15 separately from any detriment complaint. Where the unresolved issue requires an evaluative assessment and more than one conclusion is possible, the proper course is remission rather than substitution of the appellate tribunal’s own decision.

A section 15 dismissal claim requires an objective assessment of whether dismissal was a proportionate means of achieving a legitimate aim.

The Claimant, a warehouse operative with asthma, was disabled for the purposes of the Equality Act 2010. Working on the warehouse’s top floor exacerbated her asthma. Following a relocation exercise, the Respondent allocated available ground-floor posts by length of service and the Claimant returned to the top floor. She was later dismissed on grounds of incapacity after declining a reduced-hours ground-floor role.

The Sheffield Employment Tribunal upheld part of her disability-discrimination claims but dismissed her unfair-dismissal claim. It found that the original relocation involved discrimination and a failure to make reasonable adjustments, but did not expressly decide an allegation concerning a later pre-retail vacancy or the separate section 15 claim arising from dismissal.

The Claimant appealed on the scope of detriment, the omitted reasonable-adjustment allegation, and the omitted section 15 dismissal claim.

1. Appeal allowed. The EAT set aside the apparent restriction in the Employment Tribunal’s detriment finding. The Tribunal’s response under the Burns/Barke procedure made clear that it had not intended to confine detriment to reduced hours and financial loss. The substituted finding included the exacerbation of the Claimant’s asthma, alongside the matters already identified in the Tribunal’s Reasons.

2. The Employment Tribunal erred in law by failing to determine the specifically advanced allegation that a ground-floor pre-retail vacancy, said to have arisen in March 2013, should have been offered as a reasonable adjustment under sections 20 and 21 of the Equality Act 2010. Its general findings about other posts did not resolve that distinct allegation. The EAT could not substitute a finding for the Claimant because the evidence did not permit the conclusion that only one answer was possible. That issue was remitted to the Employment Tribunal.

3. The Tribunal also failed to determine the distinct claim that dismissal was unfavourable treatment arising in consequence of disability under section 15 of the Equality Act 2010, read with section 39(2). Its discussion treated the matter only as a potential detriment. The required question was whether dismissal, which followed the Claimant’s inability to work on the top floor, was a proportionate means of achieving a legitimate aim.

   Justification required an objective assessment, scrutiny of the Respondent’s reasons, and an appropriate balancing exercise. Although the burden rested on the Respondent, the EAT could not conclude that justification was necessarily unavailable. This issue also required remission to the Employment Tribunal.

4. Under Rule 34A of the Employment Appeal Tribunal Rules 1993, a successful appellant will generally be expected to recover appeal fees, although costs do not automatically follow the event. The Respondent was ordered to pay £1,400 of the Claimant’s £1,600 fees.

• Employment Appeal Tribunal: Allowed the Claimant’s appeal in [2016] UKEAT 0156_15_1801. It substituted the detriment finding, remitted the reasonable-adjustments and section 15 dismissal issues, and awarded appeal-fee costs.
• Sheffield Employment Tribunal: Judgment sent to the parties on 4 February 2015. It dismissed the unfair-dismissal claim and upheld the disability-discrimination claims only in part.